<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended July 1, 1995
____________
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from__________________to______________________
Commission File Number 0-3400
______
TYSON FOODS, INC.
________________________________________________________________________
(Exact name of registrant as specified in its charter)
Delaware 71-0225165
_______________________________ ____________________________________
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2210 West Oaklawn Drive, Springdale, Arkansas 72762-6999
________________________________________________________________________
(Address of principal executive offices and zip code)
(501) 290-4000
________________________________________________________________________
(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes X No
___ ___
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Class Outstanding July 1, 1995
____________________________________ _____________________________________
Class A Common Stock, $.10 Par Value 76,265,037 Shares
Class B Common Stock, $.10 Par Value 68,454,738 Shares
Page 1
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TYSON FOODS, INC.
INDEX
PAGE
____
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Condensed Balance Sheets
July 1, 1995 and October 1, 1994 3-4
Consolidated Condensed Statements of Operations
for the Three Months and Nine Months Ended
July 1, 1995 and July 2, 1994 5
Consolidated Condensed Statements of Cash Flows
for the Nine Months Ended
July 1, 1995 and July 2, 1994 6
Notes to Consolidated Condensed Financial
Statements 7-8
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 9-13
PART II. OTHER INFORMATION 14-17
SIGNATURES 18
2
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PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
TYSON FOODS, INC.
CONSOLIDATED CONDENSED BALANCE SHEETS
(In thousands)
(Unaudited)
July 1, October 1,
ASSETS 1995 1994
_______________________________________ ___________ __________
Current Assets:
Cash and cash equivalents $ 32,843 $ 27,020
Accounts receivable 433,368 444,216
Inventories 850,181 754,190
Other current assets 30,388 35,841
__________ __________
Total Current Assets 1,346,780 1,261,267
Net Property, Plant, and Equipment 1,729,160 1,609,997
Excess of Investments over Net Assets Acquired 738,234 741,626
Investments and Other Assets 80,942 55,110
__________ __________
Total Assets $3,895,116 $3,668,000
========== ==========
The accompanying notes are an integral part of these financial statements.
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TYSON FOODS, INC.
CONSOLIDATED CONDENSED BALANCE SHEETS
(In thousands except per share data)
(Unaudited)
July 1, October 1,
LIABILITIES AND SHAREHOLDERS' EQUITY 1995 1994
_______________________________________ __________ __________
Current Liabilities:
Notes Payable $ 23,447 $ 49,360
Current portion of long-term debt 35,692 24,177
Trade accounts payable 231,892 258,589
Other accrued liabilities 239,453 207,657
__________ __________
Total Current Liabilities 530,484 539,783
Long-Term Debt 1,498,747 1,381,481
Deferred Income Taxes 445,302 440,546
Minority Interests in Subsidiaries 8,673 16,767
Shareholders' Equity:
Common stock ($.10 par value):
Class A-Authorized 900,000,000 shares;
issued 79,686,965 shares at 7-1-95
and 79,686,153 shares at 10-1-94 7,969 7,969
Class B-Authorized 900,000,000 shares;
issued 68,454,738 shares at 7-1-95
and 68,455,438 shares at 10-1-94 6,846 6,846
Capital in excess of par value 379,178 391,358
Retained earnings 1,106,140 953,840
Currency translation adjustment (4,484) 1,180
__________ __________
1,495,649 1,361,193
Less treasury stock-3,421,928 shares at
7-1-95 and 2,941,151 shares at
10-1-94, at cost 80,767 68,700
Less unamortized deferred compensation 2,972 3,070
__________ __________
Total Shareholders' Equity 1,411,910 1,289,423
__________ __________
Total Liabilities and Shareholders' Equity $3,895,116 $3,668,000
========== ==========
The accompanying notes are an integral part of these financial statements.
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TYSON FOODS, INC.
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
(In thousands except per share data)
(Unaudited)
Three Months Ended Nine Months Ended
______________________ ______________________
July 1, July 2, July 1, July 2,
1995 1994 1995 1994
__________ __________ __________ __________
Sales $1,362,263 $1,307,697 $4,031,712 $3,722,390
Cost of Sales 1,094,465 1,050,989 3,224,971 3,025,787
__________ __________ __________ __________
Gross Profit 267,798 256,708 806,741 696,603
Expenses:
Selling 115,633 109,718 351,836 311,423
General and administrative 25,347 24,391 84,798 69,062
Amortization 6,356 8,053 19,249 24,302
Write-down of excess of
investments over net assets
acquired and long-lived assets 213,924 213,924
__________ __________ __________ __________
Operating Income (Loss) 120,462 (99,378) 350,858 77,892
Other Expense (Income):
Interest 30,558 24,388 84,022 61,487
Foreign Currency Exchange (4,085) 15,795
Other (536) (2,482) 1,310 (5,754)
__________ __________ __________ __________
Income (Loss) Before
Taxes on Income
and Minority Interest 94,525 (121,284) 249,731 22,159
Provision for Income Taxes 35,915 27,117 95,351 83,060
Minority Interest in Net
(Income)Loss of
Consolidated Subsidiary (900) 6,008
__________ __________ __________ __________
Net Income (Loss) $ 57,710 $ (148,401) $ 160,388 $ (60,901)
========== ========== ========== ==========
Average Shares Outstanding 145,062 148,515 144,716 148,392
======= ======= ======= =======
Earnings (Loss) Per Share $0.40 $(1.00) $1.11 $(0.41)
===== ====== ===== ======
Cash Dividends Per Share:
Class A $0.0200 $0.0200 $0.0600 $0.0500
======= ======= ======= =======
Class B $0.0167 $0.0167 $0.0501 $0.0417
======= ======= ======= =======
The accompanying notes are an integral part of these financial statements.
5
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CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
Nine Months Ended
________________________
July 1, July 2,
1995 1994
_________ ________
Cash Flows from Operating Activities:
Net income (loss) $ 160,388 $ (60,901)
Adjustments to reconcile net income (loss) to cash
provided by (used for) operating activities:
Depreciation 130,875 116,935
Amortization 19,249 24,302
Write-down of excess of investments over net
assets acquired and long-lived assets 213,924
Deferred income taxes 4,726 (3,714)
Foreign currency exchange loss 15,795
Minority interest in consolidated subsidiaries (5,490)
Loss on dispositions of property and equipment 5,135 2,555
(Increase) decrease in accounts receivable 10,336 (286,764)
Increase in inventories (93,472) (64,343)
Increase (decrease) in trade accounts payable (19,875) 13,865
Net change in other current assets and
liabilities 37,342 481
_________ _________
Cash Provided by (Used for) Operating Activities 265,009 ( 43,660)
Cash Flows from Investing Activities:
Net cash paid for acquisitions (48,054) (32,378)
Additions to property, plant and equipment (270,559) (174,600)
Proceeds from sale of property, plant and
equipment 14,801 3,569
Net increase in other assets and liabilities (31,971) (21,647)
_________ _________
Cash Used for Investing Activities (335,783) (225,056)
Cash Flows from Financing Activities:
Net change in notes payable (25,913) (28,355)
Proceeds from long-term debt 272,421 378,420
Repayments of long-term debt (135,069) (50,199)
Purchase of treasury shares (31,097) (1,956)
Dividends (8,088) (6,807)
Other 8,595 2,597
_________ _________
Cash Provided by Financing Activities 80,849 293,700
Effect of Exchange Rate Change on Cash (4,252)
_________ _________
Increase in Cash and Cash Equivalents 5,823 24,984
Cash and Cash Equivalents at Beginning of Period 27,020 21,547
_________ _________
Cash and Cash Equivalents at End of Period $ 32,843 $ 46,531
========= =========
Supplemental Cash Flow Information
Cash paid during the period for:
Interest $73,789 $55,572
Income taxes $61,213 $59,174
The accompanying notes are an integral part of these financial statements.
6
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NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(Unaudited)
1. Accounting Policies
The consolidated condensed financial statements have been prepared by Tyson
Foods, Inc. (the "Company"), without audit, pursuant to the rules and
regulations of the Securities and Exchange Commission. Certain information
and accounting policies and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted pursuant to such rules
and regulations. Although the management of the Company believes that the
disclosures are adequate to make the information presented not misleading,
these consolidated condensed financial statements should be read in
conjunction with the consolidated financial statements and notes thereto
included in the Company's latest annual report for the fiscal year ended
October 1, 1994. In the opinion of the management of the Company, the
accompanying consolidated condensed financial statements contain all
adjustments, consisting of normal recurring accruals necessary to present
fairly the financial position as of July 1, 1995 and October 1, 1994, the
results of operations for the three months and nine months ended
July 1, 1995 and July 2, 1994 and cash flows for the nine months ended
July 1, 1995 and July 2, 1994. The results of operations for the three months
and nine months ended July 1, 1995 and July 2, 1994, and cash flows for the
nine months ended July 1, 1995 and July 2, 1994, are not necessarily
indicative of the results to be expected for the full year.
The Notes to Consolidated Financial Statements for the year ended
October 1, 1994, reflect the significant accounting policies, debt
provisions, borrowing arrangements, dividend restrictions, contingencies and
commitments of the Company. There were no material changes in such items
during the nine months ended July 1, 1995, except as disclosed below.
2. Acquisitions
On June 26, 1995, the Company completed the purchase of Multifoods Seafood,
Inc. and JAC Creative Foods, Inc. from International Multifoods Corporation.
Sales for these companies were approximately $65 million last year. The
acquisition has been accounted for by the purchase method of accounting, and
the net assets are included in the Company's Consolidated Condensed Balance
Sheets as of July 1, 1995, based upon their estimated fair values at the
transaction's effective date. The Company's Consolidated Statements of
Operations will not include the revenues and expenses of the acquired
companies until the fourth quarter of fiscal 1995.
On July 14, 1995, the Company signed a letter of intent with Cargill,
Incorporated of Minneapolis, Minnesota ("Cargill") to acquire Cargill's U.S.
broiler operations located in Georgia and Florida. The total processing
capability of the acquired plants is approximately 2.6 million birds per
week. The purchase is subject to the execution of a definitive purchase
agreement with an estimated closing date of September 1, 1995. The purchase
price will include cash and the exchange of the Company's swine processing
plant located in Marshall, Missouri.
On July 27, 1995, the Company signed a letter of intent to acquire all of the
outstanding stock of McCarty Farms, Inc., an integrated poultry company with
all of its operations in Mississippi and the capacity to process
approximately 2.4 million birds per week. The purchase is subject to
regulatory approvals and the execution of a definitive purchase agreement.
7
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TYSON FOODS, INC.
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
3. Inventories
(In thousands)
Inventories, valued at the lower of July 1, October 1,
cost (first-in, first-out) or market 1995 1994
consist of the following: _________ _________
Finished and work-in-process $403,764 $346,846
Live poultry and hogs 272,723 255,904
Seafood related products 52,843 36,494
Hatchery eggs and feed 45,718 44,048
Supplies 75,133 70,898
________ ________
Total $850,181 $754,190
======== ========
4. Contingencies
On September 8, 1993, the State of Alaska, after conducting investigations,
filed a Complaint for Forfeiture and Damages alleging that certain Arctic
Alaska Fisheries Corporation ("Arctic") vessels participated in the use of
certain fishing gear during 1990, 1991, and 1992. While management is not
able at the present time to determine the outcome of this matter, based upon
information currently available, the Company believes that the probability is
remote that its resolution will have a material adverse effect on the
Company's financial position or results of operations.
8
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TYSON FOODS, INC.
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
FINANCIAL CONDITION
For the nine months ended July 1, 1995, net cash of $265 million was provided
by all operating activities, consisting of $330.7 million provided by
operations and $65.7 million used for net changes in receivables,
inventories, payables and other items. Finished inventories have increased
from 1994 fiscal year-end due to seasonal inventory fluctuations and
acquisitions, as well as more volume from expansion and competitive pressures
from increased supplies of poultry and alternative red meats in the market
place. Financing activities provided net cash of $80.8 million, mainly due to
additional debt borrowings during the first nine months of fiscal 1995. The
Company primarily used funds generated from operating and financing
activities to fund $270.6 million of property, plant and equipment additions
and $48.1 million for acquisitions. The expenditures for property, plant and
equipment were related to expansion of processing capabilities, acquiring new
equipment and upgrading facilities to take advantage of market opportunities.
Additionally, the Company makes a continuing effort to increase efficiencies,
reduce overall cost and meet or exceed environmental standards.
At July 1, 1995, working capital was $816.3 million compared to
$721.5 million at 1994 fiscal year-end, an increase of $94.8 million. The
current ratio at July 1, 1995 was 2.54 to 1 compared to 2.34 to 1 at October
1, 1994. Working capital and the current ratio have increased since year-end
primarily due to increases in inventories. The Company's foreseeable cash
needs for operations and capital expenditures will continue to be met through
cash flows from operations and borrowings supported by existing credit
facilities and additional credit facilities which the Company believes are
available. On March 22, 1995, the Company filed a shelf registration
statement with the Securities and Exchange Commission covering the sale from
time to time of up to $500 million of debt securities (the "Debt
Securities"). On June 7, 1995, the Company issued $150 million Debt
Securities in the form of 6.75% Notes due June 1, 2005 (the "6.75% Notes").
The net proceeds of the 6.75% Notes were used to repay a portion of the
Company's borrowings under its commercial paper program. On July 20, 1995,
the Company commenced a program for the offer of Debt Securities in the form
of Medium-Term Notes due from nine months to thirty years from the date of
issuance (the "Medium-Term Notes") in the aggregate principal amount of up to
$350 million. As of August 10, 1995, no sales of Meduim-Term Notes had
occurred, however, such Medium-Term Notes, along with other forms of Debt
Securities, may be offered to the public by the Company from time to time on
terms determined by market conditions at the time of sale. The net proceeds
from the sale of the Medium-Term Notes or other forms of Debt Securities will
be used by the Company to refinance existing indebtedness, to finance
acquisitions, as opportunities may arise, and for other general corporate
purposes.
Long-term debt has increased $117.3 million since October 1, 1994. At
July 1, 1995, long-term debt was 51.5% of total capitalization compared to
51.7% at October 1, 1994. The Company's two unsecured revolving credit
facilities provide up to $1.5 billion of financing which supports the
Company's commercial paper program. At July 1, 1995, $878 million was
9
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TYSON FOODS, INC.
outstanding under, or supported by, such credit facilities which consisted of
$813 million of commercial paper and $65 million drawn under the revolving
credit facilities. Additional outstanding long-term debt at July 1, 1995,
consisted of $150 million of 6.75% notes, $348.7 million of institutional
notes, $54.8 million of bank notes and $67.2 million of other indebtedness.
RESULTS OF OPERATIONS
Sales for the third quarter of fiscal 1995 increased 4.2% over the same
quarter of fiscal 1994. This increase was largely due to an increase in
consumer poultry sales which increased fiscal 1995 third quarter total sales
by 3.0%. The increase in consumer poultry sales is attributable to an 11.5%
increase in tonnage offset somewhat by a 6.8% decrease in average sales
prices. Lower average sales prices for consumer poultry primarily resulted
from an increased supply of poultry and alternative red meats in the market.
Until consumer demand increases or poultry and alternative protein supplies
subside, consumer poultry sales prices may remain pressured. These price
pressures are expected to adversely affect fourth quarter consumer poultry
operations. Further, management is unable to predict when increases in market
demand or reduced supply will occur. Beef and pork sales decreased fiscal
1995 third quarter total sales by 2.3% compared to the same quarter of fiscal
1994. The decrease in beef and pork sales was due to a 11.0% decrease in
tonnage and a 10.4% decrease in average sales prices. Sales of Mexican food
and prepared foods as a group increased fiscal 1995 third quarter total sales
by 2.0%. Culinary Foods, Inc., acquired by the Company in the fourth quarter
of fiscal 1994, accounted for 78.9% of the increase in this group. Seafood
sales increased fiscal 1995 third quarter total sales 0.3% due to a 9.7%
increase in tonnage offset by a 1.3% decrease in average sales prices.
Third quarter sales of live swine, animal foods, by-products, and other sales
as a group increased fiscal 1995 third quarter total sales by 1.2% compared
to the same quarter of last year. This increase was due to a 7.0% increase
in tonnage and a 28.1% increase in average sales prices.
Low market prices, which were below the Company's rearing costs, adversely
affected both sales and profit margins for live swine during the third
quarter and first nine months of fiscal 1995. As a result, the Company's
integrated pork processing operations suffered a cost disadvantage against
non-integrated pork processors, who were able to source their raw materials
at lower costs. While the impact of lower market prices for live swine was
diminished during the third quarter as compared to the first and second
quarters, the Company's live swine and integrated pork processing operations
continue to be affected by this market condition as well as from an excess
supply of processed pork in the market place. The Company's live swine and
pork operations reported an after-tax loss for the third quarter and first
nine months of fiscal 1995 of $5.6 million and $14.6 million, respectively.
These losses were partially offset by contributions from other lines in the
beef and pork division.
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TYSON FOODS, INC.
Market prices for live swine have improved in the fourth quarter as compared
to the third quarter which has improved results for the Company's live swine
operations. When the Marshall, Missouri pork processing facility is
transferred as part of the purchase price for the acquisition of additional
broiler capacity from Cargill (See Note 2 of Notes to Consolidated Condensed
Financial Statements), processed pork sales will decrease significantly in
the future. However, the decrease in processed pork sales will be
substantially offset by an increase in live swine sales as the Company's pork
operations cease to be fully integrated.
Sales for the first nine months of fiscal 1995 increased 8.3% over the same
period of fiscal 1994. This increase was mainly due to an increase in
consumer poultry sales which increased fiscal 1995 first nine months total
sales by 6.0%. The increase in consumer poultry sales is attributable to a
12.9% increase in tonnage offset somewhat by a 4.3% decrease in average sales
prices. Trasgo S.A. de C.V. (Trasgo), the Company's 50.1% owned Mexican
subsidiary, which was acquired in the third quarter of fiscal 1994, accounted
for 20.7% of the increase in consumer poultry sales. Beef and pork sales
decreased fiscal 1995 first nine months total sales by 1.2% compared to the
same period of fiscal 1994. The decrease in beef and pork sales was due to a
10.2% decrease in average sales prices offset slightly by a 0.2% increase in
tonnage. The increase in beef and pork tonnage is mainly due to the
acquisition of Gorges Foodservice, Inc. in the second quarter of fiscal 1994.
Sales of Mexican food and prepared foods as a group increased fiscal 1995
first nine months total sales by 2.2%. Culinary Foods, Inc. accounted for
74.1% of the increase in prepared foods. Seafood sales increased fiscal 1995
first nine months total sales 0.3% due to a 4.0% increase in average sales
prices and a 1.9% increase in tonnage. First nine months sales of live
swine, animal foods, by-products, and other sales as a group increased fiscal
1995 first nine months total sales by 1.0% compared to the same period of
last year due to a 9.6% increase in tonnage and a 14.4% increase in average
sales prices.
The increase in cost of goods sold of 4.1% for the third quarter of fiscal
1995 compared to the same quarter of fiscal 1994 was mainly the result of the
increase in sales offset by a decrease of approximately 12.1% in cost of feed
for live poultry and swine. Feed costs are anticipated to increase during
the remainder of this fiscal year and into next fiscal year. The impact of
rising feed cost on the Company's operations is difficult to predict. This
impact is dependent upon various factors in the commodity grain market as
well as the market for finished products. The Company's emphasis on adding
value to its products through further-processing helps to offset a portion of
the impact of increased feed costs. However, until such time as these rising
costs are passed through to the consumer or until rising feed costs subside,
operations may be negatively impacted. As a percent of sales, cost of sales
was 80.3% for the third quarter of fiscal 1995 compared to 80.4% in the third
quarter of fiscal 1994. The Company monitors and compares costs for labor,
raw material purchases, utilities and other expenses to companies within the
industry as part of its cost control measures and believes such costs are at
least within industry averages.
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TYSON FOODS, INC.
The increase in cost of goods sold of 6.6% for the first nine months of
fiscal 1995 compared to the same period of fiscal 1994 was mainly the result
of the increase in sales offset by a decrease of approximately 13.9% in the
cost of feed for live poultry and swine. As a percent of sales, cost of sales
was 80.0% for the first nine months of fiscal 1995 compared to 81.3% in the
first nine months of fiscal 1994.
Operating expenses decreased 58.6% for the third quarter of fiscal 1995 over
the same quarter of fiscal 1994. This percentage decrease is primarily the
result of the $213.9 million write-down of excess of investments over net
assets acquired and certain long-lived assets in the third quarter of fiscal
1994. Selling expense, as a percent of sales, in the third quarter of fiscal
1995 was 8.5% compared to 8.4% in the same quarter of fiscal 1994. Increased
storage and distribution costs, a portion of which is related to
international sales, have contributed to increased selling expenses. General
and administrative expense, as a percent of sales, was 1.9% in the third
quarter of fiscal 1994 and fiscal 1995. Amortization expense was 0.5% of
sales in the third quarter of fiscal 1995 compared to 0.6% in fiscal 1994.
Operating expenses decreased 26.3% for the first nine months of fiscal 1995
over the same period of fiscal 1994. This percentage decrease is primarily
the result of the $213.9 million write-down of excess of investments over net
assets acquired and certain long-lived assets in the third quarter of fiscal
1994. Selling expense, as a percent of sales, in the first nine months of
fiscal 1995 was 8.7% compared to 8.4% in the same period of fiscal 1994.
Increased storage and distribution costs, a portion of which is related to
international sales, have contributed to increased selling expenses. General
and administrative expense, as a percent of sales, was 2.1% in the first nine
months of fiscal 1995 compared to 1.9% in the same period of fiscal 1994.
Amortization expense was 0.5% of sales in the first nine months of fiscal
1995 compared to 0.7% in fiscal 1994.
The devaluation of the Mexican peso adversely affected Trasgo's fiscal 1995
first nine months operating results, but was slightly offset by increased
third quarter results. The Company's share of Trasgo's net loss for the first
nine months of fiscal 1995 reduced the Company's consolidated net income by
$6 million ($0.04 per share). The Company's share of Trasgo's net income for
the third quarter of fiscal 1995 was $1.0 million ($0.01 per share).
Management will continue to evaluate the effect of exchange rates on Trasgo's
results to determine its impact, if any, on the Company's future results.
Interest expense increased 25.3% in the third quarter of fiscal 1995 compared
to the same quarter of fiscal 1994. The Company's short-term interest rates
were approximately 52.9% higher than the same period last year, which raised
the weighted average interest rate of all Company debt to 8.1% compared to
7.2% for the same period last year. In addition, the Company had a higher
level of borrowing as a result of acquisitions which increased the Company's
average indebtedness by 12.8% over the same period last year.
Interest expense increased 36.7% in the first nine months of fiscal 1995
compared to the same period of fiscal 1994. Trasgo accounted for 21.4% of the
increase in interest expense. The Company's short-term interest rates were
approximately 71.3% higher than the same period last year, which raised the
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TYSON FOODS, INC.
weighted average interest rate of all Company debt to 7.7% compared to 6.4%
for the same period last year. In addition, the Company had a higher level of
borrowing as a result of acquisitions and the consolidation of Trasgo's debt
which increased the Company's average indebtedness by 15.7% over the same
period last year.
The effective income tax rate for the third quarter and first nine months of
fiscal 1995 was 38.0% and 38.2%, respectively, compared to 39% in the same
periods of fiscal 1994, before the write-down of excess of investments over
net assets acquired and certain long-lived assets. The decrease in the
effective tax rate is due to reduced state income taxes and the reduced
impact of the non-deductibility of amortization of excess of investments over
net assets acquired as income before income taxes increases plus an increase
in items deductible for income tax purposes that are not deductible for
financial statement purposes.
ENVIRONMENTAL MATTERS
The Company has a strong financial commitment to environmental matters.
During the first nine months of fiscal 1995 the Company invested
approximately $28.4 million in water quality facilities, including capital
outlays of $3.4 million to build and upgrade facilities, and $25 million for
day-to-day operations of waste-water facilities.
13
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PART II. OTHER INFORMATION
Item 1. Legal Proceedings
On April 13, 1995, a purported shareholder's derivative action (the "Action")
was filed by a single shareholder on the Company's behalf in the Court of
Chancery of Delaware against the directors and principal shareholders of the
Company. The Action alleges that such persons breached their fiduciary duties
to the Company as a result of their approval and/or participation in certain
transactions in fiscal year 1994 between the Company and various officers and
directors or their affiliates, including certain lease, poultry supply,
poultry grow-out, wastewater treatment and research and development service
arrangements (such transactions being more fully described under the caption
"Certain Transactions" in the Company's Proxy Statement for its 1995 Annual
Meeting). Additionally, the Action alleges that the compensation and expense
reimbursements paid to the Company's Senior Chairman in fiscal year 1994, and
the expense reimbursements paid to him in fiscal year 1993, were excessive.
The Action seeks various remedies, including (i) voiding of the challenged
transactions and an accounting of profits derived therefrom, (ii) damages
resulting from the challenged transactions and (iii) costs, expenses and
attorney fees. The Company is named as a nominal defendant in the Action,
but no claim has been asserted against it.
On May 10, 1995, the defendants filed a Motion to Dismiss the Action claiming
failure by the plaintiff to (i) make a pre-suit demand for action by the
directors of the Company, (ii) obtain personal jurisdiction over certain
shareholder defendants and (iii) state a claim upon which relief can be
granted. On July 6, 1995, The Court of Chancery entered a stipulated order
dismissing the Action without prejudice as to certain of the non-director
defendants. The motion to dismiss as to the remaining defendants is
currently pending before the Court of Chancery.
Since the Action purports to be a shareholder's derivative suit, any recovery
(except attorneys fees or other costs and expenses, if allowed) would not be
paid to the plaintiff, but rather would be paid directly to the Company. The
Company has undertaken to advance certain expenses of the director defendants
and, if applicable, may be required to satisfy certain indemnification
obligations with respect to such individuals. However, Management does not
believe that the Action or such indemnification obligations will have a
material adverse effect on the Company's financial position or results of
operations.
See Note 4 of Notes to Consolidated Condensed Financial Statements with
respect to a contingency related to Arctic.
Item 4. Submission of Matters to a Vote of Security Holders
No items were voted upon during the quarter ended July 1, 1995.
14
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TYSON FOODS, INC.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits:
The exhibits filed with this report are listed in the exhibit index at the
end of this Item 6.
(b) Reports on Form 8-K:
On July 20, 1995, the Company filed a Current Report on Form 8-K related to
the offer of Medium-Term Notes due from nine months to thirty years from the
date of issuance in the principal amount of up to $350 million.
15
<PAGE>
TYSON FOODS, INC.
EXHIBIT INDEX
The following exhibits are filed with this report.
Exhibit No. Page
___________ _____
3(a) Certificate of Incorporation of the Company as amended
(previously filed as Exhibit 3(a) to the Company's
Registration Statement on Form S-4 filed with the
Commission on July 8, 1992, Commission File No. 33-49368,
and incorporated herein by reference).
3(b) Amended and Restated Bylaws of the Company (previously
filed as Exhibit 3(b) to the Company's Annual Report
on Form 10-K for the fiscal year ended October 1, 1994,
Commission File No. 0-3400, and incorporated herein by
reference).
4(a) Form of Indenture between the Company and The Chase
Manhattan Bank, N.A., as Trustee relating to the
issuance of up to $500 million of Debt Securities
(previously filed as Exhibit 4 to Amendment No. 1 to
Registration Statement on Form S-3, filed with the
Commission on May 8, 1995, Registration No. 33-58177,
and incorporated herein by reference).
4(b) Form of 6.75% $150 million Note due June 1, 2005 19-24
4(c) Form of Fixed Rate Medium-Term Note (previously filed as
Exhibit 4.2 to the Company's Current Report on Form 8-K,
filed with the Commission on July 20, 1995, Commission
File No. 0-3400, and incorporated herein by reference).
4(d) Form of Floating Rate Medium-Term Note (previously filed
as Exhibit 4.3 to the Company's Current Report on Form 8-K,
filed with the Commission on July 20, 1995, Commission
File No. 0-3400, and incorporated herein by reference).
4(e) Form of Calculation Agent Agreement (previously filed as
Exhibit 4.4 to the Company's Current Report on Form 8-K,
filed with the Commission on July 20, 1995, Commission
File No. 0-3400, and incorporated herein by reference).
4(f) Fourth Amended and Restated Credit Agreement, including 25-102
all exhibits thereto, dated as of May 26, 1995, by and
among the Company, as Borrower, The Chase Manhattan Bank,
N.A., Chemical Bank, Continental Bank N.A., Cooperative
Centrale Raiffeisen-Boerenleenbank B.A. (Rabobank Nederland),
Morgan Guaranty Trust Company of New York, National
Westminister Bank Plc, Nationsbank of Texas, N.A., and
Societe Generale as Co-Agents and Bank of America National
Trust and Savings Association, as Agent.
16
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TYSON FOODS, INC.
4(g) First Amended and Restated Credit Agreement, dated 103-184
May 26, 1995, by and among the Company, as Borrower,
Banque Nationale De Paris, The Chase Manhattan Bank, N.A.,
Chemical Bank, Continental Bank, N.A., Credit Lyonnais,
NationsBank of Texas, N.A. Cooperative Centrale Raiffeisen-
Boerenleenbank, B.A., (Rabobank Nederland), Societe
Generale and The Toronto-Dominion Bank as Co-Agents and
Bank of America National Trust and Savings Association,
as Agent.
11 Statement Regarding Computation of Per Share Earnings 185-186
27 Financial Data Schedule 187
17
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TYSON FOODS, INC.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TYSON FOODS, INC.
Date: August 11, 1995 /s/ Gerald Johnston
_______________ _________________________
Gerald Johnston
Executive Vice President,
Finance
Date: August 11, 1995 /s/ Gary Johnson
_______________ __________________________
Gary Johnson
Corporate Controller
18
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CUSIP: 902494 AA1
No. R - 1 $150,000,000
Unless and until it is exchanged in whole or in part for Notes in
definitive registered form, this Note may not be transferred except as a
whole by the Depository Trust Company (the "Depositary") to the nominee of
the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.
TYSON FOODS, INC.
6 3/4% Note due June 1, 2005
TYSON FOODS, INC., a Delaware corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or
registered assigns, at the office or agency of the Company in The City of
New York, New York, the principal sum of $150,000,000 Dollars on June 1,
2005, in the coin or currency of the United States, and to pay interest,
semi-annually on June 1 and December 1 of each year, commencing December 1,
1995, on said principal sum at said office or agency, in like coin or
currency, at the rate per annum specified in the title of this Note, from
the June 1 or the December 1, as the case may be, next preceding the date
of this Note to which interest has been paid or duly provided for, unless
the date hereof is a date to which interest has been paid or duly provided
for, in which case from the date of this Note, or unless no interest has
been paid or duly provided for on these Notes, in which case from June 12,
1995, until payment of said principal sum has been made or duly provided
for; provided, that payment of interest may be made at the option of the
Company by check mailed to the address of the person entitled thereto as
such address shall appear on the Security Register of the Company or by
wire transfer as provided in the Indenture. Notwithstanding the foregoing,
if the date hereof is after the 15th day of May or November, as the case
may be, and before the following June 1 or December 1, this Note shall bear
interest from such June 1 or December 1; provided, that if the Company
shall default in the payment of interest due on such June 1 or December 1,
then this Note shall bear interest from the next preceding June 1 or
December 1 to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for on these Notes, from June 12,
1995. The interest so payable on any June 1 or December 1 will, subject to
certain exceptions provided in the Indenture referred to on the reverse
hereof, be paid to the person in whose name this Note is registered at the
close of business on the May 15 or November 15, as the case may be, next
preceding such June 1 or December 1, whether or not such day is a Business
Day.
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Reference is made to the further provisions of this Note set
forth on the reverse hereof. Such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually
signed by the Trustee under the Indenture referred to on the reverse
hereof.
IN WITNESS WHEREOF, TYSON FOODS, INC. has caused this instrument
to be signed manually or by facsimile by its duly authorized officers.
Dated:
TYSON FOODS, INC.
By: ______________________________
By: ______________________________
Attest:
________________________
20
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: THE CHASE MANHATTAN BANK, N.A.,
as Trustee
By: ______________________________
Authorized Signatory
21
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Company (hereinafter called
the "Securities") of the series hereinafter specified, all issued or to be
issued under and pursuant to an indenture dated as of June 1, 1995 (herein
called the "Indenture"), duly executed and delivered by the Company to The
Chase Manhattan Bank, N.A., as Trustee (herein called the "Trustee"), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the
Holders of the Securities. The Securities may be issued in one or more
series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at
different rates, may be subject to different redemption provisions (if any)
may be subject to different sinking, purchase or analogous funds (if any)
and may otherwise vary as in the Indenture provided. This Note is one of a
series designated as the 6 3/4% Notes due June 1, 2005 of the Company,
limited in aggregate principal amount to $150,000,000.
Interest will be computed on the basis of a 360-day year of 12 30-
day months. The Company shall pay interest on overdue principal and, to
the extent lawful, on overdue installments of interest at the rate per
annum borne by this Note. If a payment date is not a Business Day as
defined in the Indenture at a place of payment, payment may be made at that
place on the next succeeding day that is a Business Day, and no interest
shall accrue for the intervening period.
In case an Event of Default with respect to the 6 3/4% Notes
due June 1, 2005, as defined in the Indenture, shall have occurred and be
continuing, the principal hereof may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject
to the conditions provided in the Indenture.
The Indenture contains provisions which provide that without
prior notice to any Holders, the Company and the Trustee may amend the
Indenture and the Securities of any series with the written consent of the
Holders of a majority in principal amount of the outstanding Securities of
all series affected by such supplemental indenture (all such series voting
as one class), and the Holders of a majority in principal amount of the
outstanding Securities of all series affected thereby (all such series
voting as one class) by written notice to the Trustee may waive future
compliance by the Company with any provision of the Indenture or the
Securities of such series; provided that without the consent of each Holder
of the Securities of each series affected thereby, an amendment or waiver,
including a waiver of past defaults, may not: (i) extend the stated
maturity of the principal of, or any sinking fund obligation or any
installment of interest on, such Holder's Security, or reduce the principal
amount thereof or the rate of interest thereon (including any amount in
respect of original issue discount), or any premium payable with respect
thereto, or adversely affect the rights of such Holder under any mandatory
repurchase provision or any right of repurchase at the option of such
Holder, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of the maturity
or the amount thereof provable in bankruptcy, or change any place of
22
<PAGE>
payment where, or the currency in which, any Security of such series or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
stated maturity thereof (or, in the case of redemption, on or after the
redemption date or, in the case of mandatory repurchase, the date
therefor); (ii) reduce the percentage in principal amount of outstanding
Securities of such series the consent of whose Holders is required for any
such supplemental indenture, for any waiver of compliance with certain
provisions of the Indenture or certain Defaults and their consequences
provided for in the Indenture; (iii) waive a Default in the payment of
principal of or interest on any Security of such series; (iv) cause any
Security of such series to be subordinated in right of payment to any
obligation of the Company; or (v) modify any of the provisions of the
Indenture governing supplemental indentures with the consent of
Securityholders except to increase any such percentage or to provide that
certain other provisions of the Indenture cannot be modified or waived
without the consent of the Holder of each outstanding Security of any
series affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the Holders of at least a majority in principal amount of the
outstanding Securities of the series affected (all such series voting as a
single class), by notice to the Trustee, may waive an existing Default or
Event of Default with respect to the Securities of such series and its
consequences, except a Default in the payment of principal of or interest
on any Security or in respect of a covenant or provision of the Indenture
which cannot be modified or amended without the consent of the Holder of
each outstanding Security affected. Upon any such waiver, such Default
shall cease to exist, and any Event of Default with respect to the
Securities of such series arising therefrom shall be deemed to have been
cured, for every purpose of the Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
The Indenture provides that a series of Securities may include
one or more tranches (each a "tranche") of Securities, including Securities
issued in a periodic offering. The Securities of different tranches may
have one or more different terms, including authentication dates and public
offering prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price.
Notwithstanding any other provision of the Indenture, subject to certain
exceptions, with respect to sections of the Indenture concerning the
execution, authentication and terms of the Securities, redemption of the
Securities, Events of Default of the Securities, defeasance of the
Securities and amendment of the Indenture, if any series of Securities
includes more than one tranche, all provisions of such sections applicable
to any series of Securities shall be deemed equally applicable to each
tranche of any series of Securities in the same manner as though originally
designated a series unless otherwise provided with respect to such series
or tranche pursuant to a board resolution or a supplemental indenture
establishing such series or tranche.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
any premium and interest on this Note in the manner, at the place, at the
23
<PAGE>
respective times, at the rate and in the coin or currency herein
prescribed.
The Notes are issuable initially only in registered form without
coupons in denominations of $1,000 and any multiple of $1,000 at the office
or agency of the Company in The City of New York, and in the manner and
subject to the limitations provided in the Indenture, but without the
payment of any service charge, Notes may be exchanged for a like aggregate
principal amount of Notes of other authorized denominations.
This Note will not be redeemable prior to maturity.
Upon due presentment for registration of transfer of this Note at
the office or agency of the Company in The City of New York, a new Note or
Notes of authorized denominations for an equal aggregate principal amount
will be issued to the transferee in exchange therefor, subject to the
limitations provided in the Indenture, without charge except for any tax or
other governmental charge imposed in connection therewith.
The Company, the Trustee and any authorized agent of the Company
or the Trustee may deem and treat the registered Holder hereof as the
absolute owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by
anyone other than the Company or the Trustee or any authorized agent of the
Company or the Trustee), for the purpose of receiving payment of, or on
account of, the principal hereof and premium, if any, and, subject to the
provisions on the face hereof, interest hereon, and for all other purposes,
and neither the Company nor the Trustee nor any authorized agent of the
Company or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement
of the Company in the Indenture or any indenture supplemental thereto or in
any Note, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer or
director, as such, past, present, or future, of the Company or of any
successor corporation, either directly or through the Company or any
successor corporation, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or
equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
Terms used herein which are defined in the Indenture shall have
the respective meanings assigned thereto in the Indenture.
24
<PAGE>
Five Year Facility
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDED AND RESTATED CREDIT AGREEMENT is entered into
as of May 26, 1995, among TYSON FOODS, INC., a Delaware corporation
(the "Borrower"), the banks which are or may, from time to time
hereafter, become parties hereto (the "Banks"), THE CHASE MANHATTAN
BANK, N.A., CHEMICAL BANK, COOPERATIEVE CENTRALE
RAFFEISEN-BOERENLEENBANK, B.A. (RABOBANK NEDERLAND), MORGAN GUARANTY
TRUST COMPANY OF NEW YORK, NATIONAL WESTMINSTER BANK, NATIONSBANK OF
TEXAS, N.A., and SOCIETE GENERALE, as Co-Agents (the "Co-Agents"), and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent for
the Banks.
WHEREAS, the Borrower, certain of the Banks and certain other
banks, certain Co-Agents and the Agent are parties to a Third Amended
and Restated Credit Agreement dated as of June 8, 1994 which amended
and restated that certain Second Amended and Restated Credit Agreement
dated as of November 24, 1992 which amended and restated that certain
Amended and Restated Credit Agreement dated as of June 8, 1990 which
amended and restated that certain Credit Agreement dated as of
September 29, 1989, as amended (such Third Amended and Restated Credit
Agreement, as from time to time amended, the "Original Agreement");
and
WHEREAS, the Banks, the Co-Agents and the Agent desire to amend
and restate the Original Agreement in its entirety to provide for
certain changes in circumstances and new agreements between the
parties hereto;
NOW, THEREFORE, the parties hereto agree that, from and after the
Restatement Date, the Original Agreement shall be amended and restated
in its entirety to read as follows:
DEFINITIONS AND ACCOUNTING TERMS
1 Certain Defined Terms. As used in this Agreement and in
any Schedules and Exhibits to this Agreement, the following terms have
the following meanings (such meanings to be equally applicable to both
the singular and plural forms of the terms defined):
"Absolute Rate" means a fixed annual rate, expressed as a
percentage.
"Absolute Rate Bid Loan" means any Bid Loan that bears interest
determined with reference to an Absolute Rate.
"Affiliate" means, with respect to any Person, any Subsidiary of
such Person and any other Person which, directly or indirectly,
controls, is controlled by, or is under common control with, such
Person, and includes, if such Person is a corporation, each Person who
25
<PAGE>
is the beneficial owner of 5% or more of such corporation's
outstanding common stock. For purposes of this definition, "control"
means the possession of the power to direct or cause the direction of
management and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise.
"Agent" means Bank of America in its capacity as agent for the
Banks, together with any successor thereto in such capacity.
"Agent's Payment Office" means the address for payments set forth
on the signature pages hereof in relation to the Agent or such other
address as the Agent may from time to time specify in accordance with
Section 10.01.
"Agreement" means this Fourth Amended and Restated Credit
Agreement, as from time to time amended, modified or supplemented.
"Aggregate Commitments" means the aggregate amount of the
Commitments of all the Banks as in effect from time to time.
"Assignee" has the meaning specified in Section 10.08(a).
"Bank" has the meaning specified in the preamble and includes
each Bank listed on the signature pages hereof and each Person which
becomes a Bank pursuant to Section 10.08.
"Bank Affiliate" means a Person engaged primarily in the business
of commercial banking and that is a Subsidiary of a Bank or of a
Person of which a Bank is a Subsidiary.
"Bank of America" means Bank of America National Trust and
Savings Association, a national banking association.
"Bank of America Rate" has the meaning specified in the
definition of Reference Rate.
"Bid Borrowing" means an extension of credit hereunder consisting
of one or more Bid Loans made to the Borrower on the same day by one
or more Banks.
"Bid Loan" means a Loan made by a Bank to the Borrower pursuant
to Section 2.03 and may be a LIBOR Bid Loan or an Absolute Rate Bid
Loan and includes any Existing Bid Loan.
"Borrower" has the meaning specified in the preamble.
"Borrowing" means a Committed Borrowing or a Bid Borrowing.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City or San Francisco
are authorized or required by law to close and, if the applicable
Business Day relates to any Eurodollar Loan, means such a day on which
dealings are carried on in the London interbank market.
"CERCLA" has the meaning specified in the definition of
Environmental Law.
"Co-Agents" has the meaning specified in the preamble.
26
<PAGE>
"COBRA" has the meaning specified in Section 4.16(k).
"Code" means the Internal Revenue Code of 1986 (or any
successor(s) thereto), as amended from time to time.
"Commitment" means, for each Bank, as the context may require (a)
the amount in dollars set forth in Schedule 1.01(a) opposite the name
of such Bank under the heading "Commitment" or as otherwise set forth
in any Notice of Assignment, as such amount may be reduced pursuant to
Section 2.06 or as a result of one or more assignments pursuant to
Section 10.08 or (b) the obligation of such Bank to extend credit to
the Borrower hereunder in the amount specified in the immediately
preceding clause (a).
"Committed Borrowing" means an extension of credit hereunder
consisting of Committed Loans made, continued or converted on the same
day by the Banks ratably according to their Percentage Shares and, in
the case of Eurodollar Loans, having the same Interest Periods.
"Committed Loan" means an extension of credit by a Bank to the
Borrower pursuant to Section 2.01 and may be a Eurodollar Loan or a
Reference Rate Loan.
"Competitive Bid" means an offer by a Bank to make a Bid Loan in
accordance with Section 2.04(b).
"Competitive Bid Request" has the meaning specified in Section
2.04(a).
"Contractual Obligation" means, as to any Person, any provision
of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other
instrument, document or agreement to which such Person is a party or
by which it or any of its property is bound.
"Controlled Group" means, with respect to any Person, all members
of a controlled group of corporations and all trades or businesses
(whether or not incorporated) which are under common control with such
Person and which, together with such Person, are treated as a single
employer under Section 414(b), (c), (m) or (o) of the Code.
"Debt Rating" means the actual or implied rating as most recently
assigned to the Borrower's long-term senior unsecured debt by Moody's
or S&P, as the case may be.
"Debt Ratio" means, at any date of determination, the ratio of
(a) Indebtedness for Borrowed Money to (b) Total Capitalization as of
the last day of the most recent fiscal quarter or fiscal year, as the
case may be, of the Borrower for which financial statements have been
delivered pursuant to paragraph (a) or (b) of Section 6.09.
"Default" means any event or condition which, with the giving of
notice or the lapse of time, or both, would become an Event of
Default.
"Domestic Lending Office" has the meaning specified in the
definition of Lending Office.
27
<PAGE>
"Eligible Assignee" means (a) a commercial bank organized under
the laws of the United States of America, or any state thereof, and
having a combined capital and surplus of at least $100,000,000; (b) a
commercial bank organized under the laws of any other country which is
a member of the Organization for Economic Cooperation and Development,
or a political subdivision of any such country, and having a combined
capital and surplus of at least $100,000,000, provided such bank is
acting through a branch or agency located in the United States of
America; and (c) any Bank Affiliate.
"Environmental Claim" means any claim, however asserted, by any
Governmental Authority or other Person alleging potential liability
for violation of any Environmental Law or for release or injury to the
environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources
damage, or otherwise alleging liability for damages, punitive damages,
cleanup costs, removal costs, remedial costs, response costs,
restitution, civil or criminal penalties, injunctive relief, or other
type of relief, resulting from or based upon (a) the presence,
placement, discharge, emission or release (including intentional and
unintentional, negligent and non-negligent, sudden or non-sudden,
accidental or non-accidental placement, spill, leaks, discharges,
emissions or releases) of any Hazardous Material at, in or from
property, whether or not owned by the Borrower or any of its
Subsidiaries, or (b) any other circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law.
"Environmental Law" means the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. 9601 et seq.)
("CERCLA"), the Hazardous Material Transportation Act (49 U.S.C.
1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C.
6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C.
1251 et seq.), the Clean Air Act (42 U.S.C. 7401 et seq.), the Toxic
Substances Control Act (15 U.S.C. 2601 et seq.) and the Occupational
Safety and Health Act (29 U.S.C. 651 et seq.) ("OSHA"), as such laws
have been or hereafter may be amended, modified or supplemented, and
any and all analogous future federal, or present or future state or
local, statutes and the regulations promulgated pursuant thereunder.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time and all regulations promulgated
thereunder.
"ERISA Event" means, with respect to any Person, (a) a Reportable
Event (other than a Reportable Event not subject to the provision for
30-day notice to the PBGC under regulations issued under Section 4043
of ERISA); (b) the withdrawal of such Person or any member of its
Controlled Group from a Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA; (c)
the filing of a notice of intent to terminate a Plan or the treatment
of a Plan amendment as a termination under Section 4041 of ERISA; (d)
the institution of proceedings to terminate a Plan by the PBGC; (e)
the failure to make required contributions which would result in the
imposition of a Lien under Section 412 of the Code or Section 302 of
ERISA; and (f) any other event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any
28
<PAGE>
Plan or the imposition of any liability under Title IV of ERISA other
than PBGC premiums due but not delinquent under Section 4007 of ERISA.
"Eurocurrency Liabilities" has the meaning assigned to that term
in Regulation D of the Federal Reserve Board, as in effect from time
to time.
"Eurodollar Lending Office" has the meaning specified in the
definition of Lending Office.
"Eurodollar Loan" means any Committed Loan that bears interest at
a rate determined with reference to LIBOR.
"Eurodollar Reserve Percentage" means, with respect to any
Interest Period for any Eurodollar Loan made by any Bank, the reserve
percentage applicable during such Interest Period (or if more than one
such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any
such percentage shall be so applicable) under regulations issued from
time to time by the Federal Reserve Board for determining the maximum
reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) for such Bank with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 8.01.
"Existing Bid Loan" means any bid loan of any Bank outstanding
under the Original Agreement on the Restatement Date.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by the Agent.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System.
"Fee Letter" means the letter agreement dated as of the
Restatement Date between the Borrower and the Agent regarding the
payment of certain fees.
"Final Maturity Date" means May 31, 2000.
"Form 1001" has the meaning specified in Section 3.05(f)(i)(B).
"Form 4224" has the meaning specified in Section 3.05(f)(i)(A).
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and
29
<PAGE>
statements and pronouncements of the Financial Accounting Standards
Board, or in such other statements by such other entity as may be in
general use by significant segments of the accounting profession,
which are applicable to the circumstances as of the date of
determination.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any central bank (or
similar monetary or regulatory authority) thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Hazardous Materials" means all those substances which are
regulated by, or which may form the basis of liability under, any
Environmental Law, including all substances identified under any
Environmental Law as a pollutant, contaminant, waste, solid waste,
hazardous waste, hazardous constituent, special waste, hazardous
substance, hazardous material, or toxic substance, or petroleum or
petroleum derived substance or waste.
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money or for the deferred purchase price of
property or services (including reimbursement and all other
obligations with respect to surety bonds, letters of credit and
bankers' acceptances, whether or not matured); (b) all obligations
evidenced by notes, bonds, debentures or similar instruments; (c) all
indebtedness created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or bank
under such agreement in the event of default are limited to
repossession or sale of such property); (d) all obligations under
leases which have been or should be, in accordance with GAAP, recorded
as capital leases; (e) all net obligations with respect to Interest
Rate Contracts; (f) all direct or indirect guaranties in respect of
any obligations (contingent or otherwise) to purchase or otherwise
acquire, or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in
clause (a), (b), (c), (d) or (e) above; and (g) all Indebtedness
referred to in clause (a), (b), (c), (d) or (e) above secured by (or
for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in
property (including accounts and contracts rights) owned by such
Person, even though such Person has not assumed or become liable for
the payment of such Indebtedness; provided, however, that if any
Indebtedness of any type referred to above is supported by another
type of Indebtedness referred to above, such Indebtedness shall not be
considered more than once for the purposes of this definition; and
provided, further, that for the purposes of this definition,
Indebtedness shall not include any obligation of the Borrower to make
payments to or in respect of the Hogty Limited Partnership or similar
programs in connection with live inventory, consistent with past
practices, or to make payments to MetLife Leasing or a similar entity
under and in respect of a lease guaranty program or any similar live
inventory program with Arkansas-California Livestock Company, Inc. or
another entity, consistent with past practices.
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"Indebtedness for Borrowed Money" means the sum of all
Indebtedness of the Borrower and its consolidated Subsidiaries of the
type referred to in paragraphs (a), (b) and (d) of the definition of
Indebtedness.
"Indemnified Party" has the meaning specified in Section
10.05(a).
"Insolvency Proceeding" means (a) any case, action or proceeding
before any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation, receivership,
dissolution, winding-up or relief of debtors or (b) any general
assignment for the benefit of creditors, composition, marshalling of
assets for creditors or other similar arrangement in respect of the
creditors of any Person generally or any substantial portion of the
creditors of such Person; in each case undertaken under United States
Federal or State law or foreign law.
"Interest Payment Date" means (a) with respect to any Eurodollar
Loan or Bid Loan, the last day of each Interest Period applicable to
such Eurodollar Loan or Bid Loan and (i) with respect to any Interest
Period of six months duration for any Eurodollar Loan, the date which
falls three months after the beginning of such Interest Period, and
(ii) with respect to any Bid Loan, such intervening date prior to the
maturity thereof as may be agreed between the Borrower and the
applicable Bank and (b) with respect to any Reference Rate Loan, the
last day of each calendar quarter.
"Interest Period" means,
(a) with respect to any Eurodollar Loan, the period commencing on
the Business Day such Eurodollar Loan is disbursed or on the date
on which a Reference Rate Loan is converted into a Eurodollar
Loan and ending on the date one, two, three or six months
thereafter, as selected by the Borrower in its Notice of
Borrowing or Notice of Conversion/Continuation; and
(b) with respect to any Bid Loan, the period specified by
the Borrower in the relevant Competitive Bid Request;
provided, however, that:
(i) in the case of the continuation of a
Eurodollar Loan pursuant to Section 2.11(b), the Interest
Period applicable after the continuation of such Loan
shall commence on the last day of the preceding Interest
Period;
(ii) if any Interest Period applicable to a
Eurodollar Loan would otherwise end on a day which is not
a Business Day, that Interest Period shall be extended to
the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into
another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(iii) any Interest Period applicable to a
Eurodollar Loan that begins on the last Business Day of a
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calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such
Interest Period; and
(iv) no Interest Period for any Loan shall
extend beyond the Final Maturity Date.
"Interest Rate Contracts" means interest rate protection, cap or
collar agreements, interest rate insurance, and other agreements or
arrangements designed to provide protection against fluctuations in
interest rates.
"IRS" means the Internal Revenue Service of the United States of
America.
"Lending Office" means, with respect to any Bank, (a) in the case
of a Committed Loan, the office or offices of such Bank specified as
its "Domestic Lending Office" or "Eurodollar Lending Office", as the
case may be, opposite its name in Schedule 1.01(b) or in the
applicable Notice of Assignment or such other office or offices of
such Bank as such Bank may from time to time specify in writing to the
Borrower and the Agent and (b) in the case of a Bid Loan, the office
of such Bank notified by such Bank to the Borrower as its Lending
Office with respect to such Bid Loan or, if such Bank fails to so
notify the Borrower, such Bank's Domestic Lending Office listed in
Schedule 1.01(b).
"Level I Status" exists at any date if, at such date, the Debt
Rating is A (or the equivalent) or higher by S&P or A2 (or the
equivalent) or higher by Moody's.
"Level II Status" exists at any date if, at such date (a) the
Debt Rating is A- (or the equivalent) by S&P or A3 (or the equivalent)
by Moody's and (b) Level I Status does not exist.
"Level III Status" exists at any date if, at such date (a) the
Debt Rating is BBB+ (or the equivalent) by S&P or Baa1 (or the
equivalent) by Moody's and (b) neither Level I Status nor Level II
Status exists.
"Level IV Status" exists at any date if, at such date (a) the
Debt Rating is BBB (or the equivalent) by S&P or Baa2 (or the
equivalent) by Moody's and (b) neither Level I Status nor Level II
Status nor Level III Status exists.
"Level V Status" exists at any date if, at such date (a) the Debt
Rating is BBB- (or the equivalent) by S&P or Baa3 (or the equivalent)
by Moody's and (b) neither Level I Status nor Level II Status nor
Level III nor Level IV Status exists.
"Level VI Status" exists at any date if, at such date (a) the
Debt Rating is lower than BBB- (or the equivalent) by S&P and lower
than Baa3 (or the equivalent) by Moody's or (b) neither Moody's nor
S&P has assigned a Debt Rating.
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"LIBOR" means, for any Interest Period, the rate of interest
determined by the Agent to be the arithmetic mean (rounded upward to
the nearest 1/100%) of the rates of interest per annum notified to the
Agent by each Reference Bank as the rate of interest at which dollar
deposits in an amount (a) in the case of a Committed Borrowing,
approximately equal to the amount of the Loan to be made or continued
as, or converted into, a Eurodollar Loan by such Reference Bank or (b)
in the case of a Bid Borrowing, approximately equal to the amount of
each LIBOR Bid Loan accepted by the Borrower pursuant to Section
2.04(c)(ii), and, in each case, having a maturity equal to such
Interest Period, would be offered to major banks in the London
interbank market at their request at or about 11:00 a.m. (London time)
on the second Business Day before the commencement of such Interest
Period.
"LIBOR Bid Loan" means any Bid Loan that bears interest at a rate
determined with reference to LIBOR.
"LIBOR Bid Margin" has the meaning specified in Section
2.04(b)(ii)(B).
"Lien" means any lien, charge, security interest or encumbrance
or any other type of preferential arrangement (including liens or
retained security titles of conditional vendors and capitalized leases
but excluding any right of set-off).
"Loan" means an extension of credit by a Bank pursuant to Article
II and may be a Committed Loan or a Bid Loan.
"Loan Documents" means this Agreement, any promissory notes
delivered pursuant to this Agreement, the Notices of Borrowing, the
Notices of Conversion/Continuation and the Competitive Bid Requests.
"Majority Banks" means at any time Banks holding at least 51% of
the Commitments and, if the Commitments have been terminated, Banks
holding at least 51% of the then aggregate unpaid principal amount of
the Loans made by the Banks.
"Material Adverse Effect" means (a) an adverse change in, or an
adverse effect upon, the financial condition, business, prospects or
properties of any of (i) the Borrower or (ii) the Borrower and its
Subsidiaries taken as a whole resulting from a single event or a
series of events within any 12-month period causing the consolidated
Net Worth of the Borrower to be reduced by 30% or more; (b) any
material adverse change in the rights or remedies of the Banks under
the Loan Documents or the ability of the Borrower to perform its
obligations under any of the Loan Documents; or (c) any material
adverse change in the legality, validity or enforceability of any Loan
Document.
"Moody's" means Moody's Investors Service, Inc. or any successor
to the rating agency business thereof.
"Multiemployer Plan" means, with respect to any Person, at any
time, a "multiemployer plan" within the meaning of Section 4001(a)(3)
of ERISA and to which such Person or any member of its Controlled
Group is making, or is obligated to make contributions or has made, or
been obligated to make, contributions.
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"Net Proceeds" means, with respect to any sale, lease, transfer,
condemnation or other voluntary or involuntary disposition of assets,
including a Permitted Disposition,
(a) the aggregate amount of cash proceeds received by the
Borrower or any of its Subsidiaries from such disposition;
minus
(b) the sum of
(i) all fees and expenses, including
customary brokerage commissions, appraisal fees, survey
charges, legal and investment banking fees and other
similar commissions, charges or fees incurred in
connection with such disposition;
plus
(ii) all taxes, including filing, recording or
registration fees, recording taxes and transfer taxes paid
(or payable) and income tax paid in connection with such
disposition;
plus
(iii) the amount of Indebtedness required to
be paid in connection with such disposition to satisfy any
Lien existing on the property included in such
disposition.
"Net Worth" means, with respect to any Person, at any date of
determination, shareholders' equity as determined in accordance with
GAAP.
"Notice of Assignment" has the meaning specified in Section
10.08(b).
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Conversion/Continuation" has the meaning specified in
Section 2.11(b).
"Obligations" means all Loans, other Indebtedness, advances,
debts, liabilities, obligations, covenants and duties owing by the
Borrower to any Bank, the Agent, any Affiliate of any of the foregoing
or any Indemnified Party, of any kind or nature, present or future,
whether or not evidenced by any note, guaranty or other instrument,
arising under this Agreement or under any other Loan Document, whether
or not for the payment of money, whether arising by reason of an
extension of credit, loan, guaranty, indemnification, or in any other
manner, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired. The term
"Obligations" includes all interest, charges, expenses, fees,
attorneys' fees and disbursements (including the allocated cost of
in-house counsel) and any other sum chargeable to the Borrower under
this Agreement or any other Loan Document.
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"Original Agreement" has the meaning specified in the first
recital to this Agreement.
"OSHA" has the meaning specified in the definition of
Environmental Laws.
"Other Taxes" has the meaning specified in Section 3.05(b).
"Participant" has the meaning specified in Section 10.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Percentage Share" means, as to any Bank, at any time, such
Bank's percentage share of the Aggregate Commitments, as set forth
opposite such Bank's name in Schedule 1.01(a) under the heading
"Percentage Share" or set forth in any Notice of Assignment delivered
pursuant to Section 10.08, as such percentage may be modified from
time to time in connection with any assignment of the Commitment of
such Bank in accordance with the terms hereof.
"Permitted Disposition" means, any disposition (except as
otherwise permitted under Section 7.07) made by the Borrower or any of
its Subsidiaries of any of its assets if the Net Proceeds of such
disposition together with all other dispositions made in the same
fiscal year does not exceed $100,000,000 in such fiscal year.
"Permitted Investments" means:
(a) securities issued or fully guaranteed or insured by
the United States Government or any agency thereof and backed by
the full faith and credit of the United States of America having
maturities of not more than one year from the date of
acquisition;
(b) certificates of deposit, time deposits, Eurodollar
time deposits, overnight bank deposits, repurchase agreements,
reverse repurchase agreements or bankers' acceptances, having in
each case a tenor of not more than one year issued by any Bank,
or by any United States commercial bank or any branch or agency
of a non-United States bank licensed to conduct business in the
United States of America having a combined capital and surplus of
not less than $100,000,000 whose short terms securities are rated
at least A-1 by S&P and P-1 by Moody's;
(c) commercial paper of an issuer rated at least A-1 by
S&P or P-1 by Moody's and in either case having a tenor of not
more than 270 days;
(d) money-market funds invested in short-term securities
rated at least as provided in clause (b) above; and
(e) deposits with financial institutions listed in
Schedule 1.01(c).
"Permitted Lien Basket" means 10% of consolidated Net Worth.
"Permitted Liens" has the meaning specified in Section 7.01.
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"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture or Governmental Authority.
"Plan" means, with respect to the Borrower or any member of its
Controlled Group, at any time, an employee pension benefit plan as
defined in Section 3(2) of ERISA (including a Multiemployer Plan) that
is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is maintained for the
employees of such Person or any member of its Controlled Group.
"Reference Banks" means Bank of America, NationsBank of Texas,
N.A. and Societe Generale.
"Reference Rate" means the higher of (a) the Federal Funds Rate
plus 1/2% and (b) the rate of interest (the "Bank of America Rate")
publicly announced from time to time by Bank of America in San
Francisco, California, as its reference rate. The Bank of America
Rate is a rate set by Bank of America based upon various factors
including Bank of America's cost and desired return, general economic
conditions, and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below the Bank
of America Rate. Any change in the Bank of America Rate shall take
effect at the opening of business on the day specified in the public
announcement of such change.
"Reference Rate Loan" means any Committed Loan that bears
interest at a rate determined with reference to the Reference Rate.
"Reportable Event" means any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder.
"Replacement Bank" has the meaning specified in Section 3.14(b).
"Requirement of Law" means, with respect to any Person, the
charter and by-laws or other organizational or governing documents of
such Person, and any law, rule or regulation (including Environmental
Laws and ERISA) or order, decree or other determination of an
arbitrator or a court or other Governmental Authority applicable to or
binding upon such Person or any of its property or to which such
Person or any of its property is subject.
"Responsible Officer" means, with respect to any Person, the
Chief Executive Officer, the President, the Chief Financial Officer,
the Treasurer, the Assistant Treasurer or the Secretary of such
Person.
"Restatement Date" means the date on which all conditions
precedent set forth in Sections 5.01 and 5.02 have been satisfied or
waived by all the Banks.
"S&P" means Standard & Poor's Ratings Group or any successor to
the rating agency business thereof.
"Solvent" means, with respect to any Person, that the fair value
of the assets of such Person (both at fair valuation and at present
fair saleable value) is, on the date of determination, greater than
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the total amount of liabilities (including contingent and unliquidated
liabilities) of such Person as of such date and that, as of such date,
such Person is able to pay all liabilities of such Person as such
liabilities mature and such Person does not have unreasonably small
capital with which to carry on its business. In computing the amount
of contingent or unliquidated liabilities at any time, such
liabilities will be computed at the amount which, in light of all the
facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured
liability.
"Stock" means all shares, options, interests, participations or
other equivalents (regardless of how designated) of or in a
corporation or other entity, whether voting or non-voting, of any
class and includes, common stock, preferred stock or warrants or
options for any of the foregoing.
"Subsidiary" means, with respect to any Person, any corporation
more than 50% of whose stock having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
is at the time owned by such Person, directly or indirectly through
one or more Subsidiaries; provided, however, that, other than for
purposes of Section 7.05 and Section 7.15, 801444 Ontario Ltd., T&T
Trading Company, Tyson Export Sales, Inc., Tyson de Mexico, S.A. de
C.V. and Tyson Marketing Ltd. and their Subsidiaries shall not be
deemed to be Subsidiaries of the Borrower.
"Taxes" has the meaning specified in Section 3.05(a).
"Total Capitalization" means, at any date, the sum of (a) the
aggregate amount of Indebtedness for Borrowed Money and (b) Net Worth
of the Borrower and its consolidated Subsidiaries.
"Tyson Limited Partnership" means that certain Delaware limited
partnership of the same name of which Mr. Don Tyson is the Managing
General Partner.
2 Computation of Time Periods. In this Agreement, in the
computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the
words "to" and "until" each means "to but excluding".
3 Accounting Matters. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP; provided,
however, all computations determining compliance with Section 7.15
shall use accounting principles consistent with those applied in the
preparation of the financial statements of the Borrower referred to in
Section 4.05.
4 Certain Terms. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement
as a whole, including the Exhibits and Schedules hereto, as the same
may from time to time be amended, supplemented, amended and restated
or otherwise modified and not to any particular Article, Section,
paragraph or clause in this Agreement. The word "includes" and
"including" when used herein is not intended to be exclusive and means
"includes, without limitation" and "including, without limitation."
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References herein to an Article, Section, paragraph or clause shall
refer to the appropriate Article, Section, paragraph or clause in this
Agreement.
II AMOUNTS AND TERMS OF THE LOANS
1 Amounts and Terms of Commitments. Each Bank severally
agrees, on the terms and subject to the conditions hereinafter set
forth, to make Committed Loans to the Borrower (each such Loan, a
"Committed Loan") from time to time on any Business Day during the
period from the Restatement Date to the Final Maturity Date, in an
aggregate principal amount not to exceed at any time outstanding such
Bank's Commitment; provided, however, that after giving effect to any
Borrowing of Committed Loans, (a) the aggregate principal amount of
all outstanding Committed Loans plus (b) the aggregate principal
amount of all outstanding Bid Loans shall not exceed the Aggregate
Commitments. Within the limits of each Bank's Commitment, the
Borrower may borrow under this Section 2.01, prepay pursuant to
Section 2.07 and reborrow pursuant to this Section 2.01.
2 Procedure for Committed Borrowings.
(a) Each Committed Borrowing shall be made upon the
irrevocable notice of the Borrower, received by the Agent not later
than 12:00 noon (New York City time) (i) three Business Days prior to
the date of the proposed Borrowing, in the case of Eurodollar Loans;
and (ii) one Business Day prior to the date of the proposed Borrowing,
in the case of Reference Rate Loans; provided, however, that in case
of a Committed Borrowing of Reference Rate Loans after the
cancellation of a Bid Borrowing pursuant to Section 2.04(c)(i), the
Borrower may give such notice to the Agent not later than 11:00 a.m.
(New York City time) on the date of such Committed Borrowing. Each
such notice of a Committed Borrowing (a "Notice of Borrowing") shall
be in writing (including by facsimile confirmed immediately by
telephone), in substantially the form of Exhibit 2.02 specifying:
(i) the requested borrowing date, which shall be a Business
Day;
(ii) the aggregate amount of the Borrowing, which (A) shall not
exceed the unused portion of the Aggregate Commitments and (B)
shall be a minimum amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof;
(iii) whether the Borrowing is to be comprised of Eurodollar
Loans or Reference Rate Loans; and
(iv) if the Borrowing is to be comprised of Eurodollar Loans,
the duration of the initial Interest Period applicable to such
Loans. If the Notice of Borrowing shall fail to specify the
duration of the initial Interest Period for any Borrowing
comprised of Eurodollar Loans, such Interest Period shall be
three months.
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(b) Upon receipt of a Notice of Borrowing, the Agent shall
promptly notify each Bank thereof and of the amount of such Bank's
Percentage Share of such Borrowing.
(c) Each Bank shall make the amount of its Percentage Share of
the Committed Borrowing available to the Agent for the account of the
Borrower at the Agent's Payment Office by 12:00 noon (New York City
time) on the borrowing date requested by the Borrower in funds
immediately available to the Agent. Unless any applicable condition
specified in Article V has not been satisfied, the Agent will make the
funds so received from the Banks promptly available to the Borrower by
crediting the account of the Borrower on the books of Bank of America
(or such other account as shall have been specified by the Borrower)
with the aggregate amount made available to the Agent by the Banks and
in like funds as received by the Agent.
(d) After giving effect to any Committed Borrowing, there
shall not be more than six different Interest Periods in effect in
respect of all Committed Loans together.
3 Bid Borrowings. In addition to Committed Borrowings
pursuant to Section 2.01, each Bank severally agrees that the Borrower
may, as set forth in Section 2.04, from time to time on any Business
Day during the period from the Restatement Date to the Final Maturity
Date, request the Banks to submit offers to make Bid Loans to the
Borrower; provided, however, that the Banks may, but shall have no
obligation to, submit such offers and the Borrower may, but shall have
no obligation to, accept any such offers; and provided, further, that
at no time shall the sum of (a) the aggregate principal amount of all
outstanding Bid Loans made by all Banks plus (b) the aggregate
principal amount of all outstanding Committed Loans exceed the
Aggregate Commitments.
4 Procedure for Bid Borrowings.
(a) The Borrower may request a Bid Borrowing hereunder by
delivering to the Agent and each Bank by facsimile not later than
12:00 noon (New York City time) (i) three Business Days prior to the
date of the proposed Borrowing, in the case of LIBOR Bid Loans; and
(ii) one Business Day prior to the date of the proposed Borrowing, in
the case of Absolute Rate Bid Loans, a solicitation for Bid Loans (a
"Competitive Bid Request"), in substantially the form of Exhibit
2.04(a), specifying:
(i) the requested borrowing date, which shall be a Business
Day;
(ii) the aggregate amount of the Borrowing, which shall be a
minimum amount of $5,000,000 or an integral multiple of $1,000,000
in excess thereof;
(iii) whether the Bid Loans requested are LIBOR Bid Loans or
Absolute Rate Bid Loans;
(iv) the duration of the Interest Period applicable to such Bid
Loans, which shall be not less than five days and not more than 183
days; and
(v) any other terms to be applicable to such Bid Loans.
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(b) (i) Each Bank may, in response to a Competitive Bid
Request, in its discretion, irrevocably submit to the Borrower a
Competitive Bid containing an offer or offers to make one or more Bid
Loans. Each Competitive Bid must be submitted to the Borrower by
facsimile before 10:00 a.m. (New York City time) (i) two Business
Days prior to the proposed date of Borrowing, in the case of a
request for LIBOR Bid Loans and (ii) on the proposed date of
Borrowing, in the case of a request for Absolute Rate Bid Loans.
(i) Each Competitive Bid shall be in substantially the form
of Exhibit 2.04(b), specifying:
(A) the minimum amount of each Bid Loan for which such
competitive Bid is being made, which shall be $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, and the maximum
amount thereof, which may not exceed the principal amount of Bid Loans
for which Competitive Bids were requested (but which may exceed such
Bank's Commitment);
(B) the rate or rates of interest per annum offered for
each Bid Loan, which, in the case of a LIBOR Bid Loan, shall be
expressed as a percentage (rounded to the nearest 1/100%) to be added
to or subtracted from the applicable LIBOR (the "LIBOR Bid Margin");)
(C) the applicable Interest Period for each Bid Loan
offered by it; and
(D) the identity and the applicable Lending Office of the
quoting Bank.
A Competitive Bid may contain up to six separate offers by the
quoting Bank with respect to each Interest Period specified in
the related Competitive Bid Request.
(ii) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity with Exhibit
2.04(b) or does not specify all of the information required by clause
(ii) above;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set
forth in the applicable Competitive Bid Request; or
(D) arrives after the time set forth in clause (i) above.
(c) Not later than 11:00 a.m. (New York City time) (i) two
Business Days prior to the proposed date of Borrowing, in the case of
LIBOR Bid Loans and (ii) on the date of such Bid Borrowing, in the
case of Absolute Rate Loans, the Borrower shall either
(i) cancel such Borrowing by giving the Agent and the Banks
notice thereof (which notice may be given by telephone, confirmed by
facsimile); or
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(ii) accept one or more of the offers made by any Bank or Banks
pursuant to paragraph (b) above, in its sole discretion, by giving
notice (which notice may be given by telephone, confirmed by
facsimile) (A) to such Bank or Banks of the amount of each Bid Loan
(which amount shall be equal to or greater than the minimum amount,
and equal to or less than the maximum amount, notified to the Borrower
by such Bank for such Bid Loan pursuant to paragraph (b) above) to be
made by each such Bank as part of such Bid Borrowing, and reject any
remaining offers made by the Banks and give notice to that effect, and
(B) to the Agent of the date of such Borrowing and the aggregate
amount thereof (which may not exceed the applicable amount set forth
in the related Competitive Bid Request); provided, however, that
acceptance by the Borrower of offers may only be made on the basis of
ascending LIBOR Bid Margins or Absolute Rates within each Interest
Period; and, provided, further, that if offers are made by two or more
Banks with the same LIBOR Bid Margins or Absolute Rates for a greater
aggregate principal amount than the amount for which such offers are
accepted for the related Interest Rate Period, the principal amount of
Bid Loans accepted shall be allocated by the Borrower among such Banks
as nearly as possible (in multiples not less than $1,000,000) in
proportion to the aggregate principal amount of such offers;
provided, however, that in the event the Borrower does not,
before the time stated above, either cancel the proposed Bid
Borrowing pursuant to clause (i) above or accept one or more of
the offers pursuant to clause (ii) above, such Bid Borrowing
shall be deemed cancelled and provided further, that in the event
the Borrower accepts one or more of the offers pursuant to clause
(ii) above but does not expressly reject or accept the remaining
offers, such remaining offers shall be deemed rejected.
(d) (i) If the Borrower accepts one or more of the offers to
make Bid Loans made by any Bank or Banks pursuant to paragraph (c)(ii)
above, each such Bank shall, subject to the satisfaction of the
conditions precedent specified in Section 5.03, before 12:00 noon (New
York City time) on the date of the Bid Borrowing, make available to
the Borrower at such Bank's Lending Office such Bank's portion of such
Bid Borrowing in same day funds.
(i) Not later than 5:00 p.m. (New York City time) on the date
of each Bid Borrowing,
(A) the Borrower shall notify the Agent of (1) the
aggregate amount of Bid Loans made in connection with such Bid
Borrowing (which amount may not exceed the amount requested pursuant
to Section 2.04(a)(ii)), (2) each date on which any Bid Loan shall
mature, (3) the principal amount of Bid Loans which shall mature on
each such date, (4) the highest and the lowest Competitive Bid
submitted by the Banks in connection with each Competitive Bid
Request, and (5) the highest and the lowest Competitive Bid accepted
by the Borrower; and
(B) the Agent will in turn promptly give to each Bank the
information received from the Borrower in connection with such Bid
Borrowing.
(e) Upon being notified by the Borrower of the amount of, and
the applicable Interest Period for, any LIBOR Bid Loan, the Agent
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shall determine LIBOR (as provided in the definition of LIBOR) and
give prompt notice to the Borrower and the relevant Bank or Banks
thereof.
5 Evidence of Indebtedness.
(a) Each Bank, with respect to amounts payable to it
hereunder, and the Agent, with respect to all amounts payable
hereunder, shall maintain on its books in accordance with its usual
practice, loan accounts, setting forth each Committed Loan, and, in
the case of each Bank having made a Bid Loan, each such Bid Loan, the
applicable interest rate and the amounts of principal, interest and
other sums paid and payable by the Borrower from time to time
hereunder with respect thereto; provided, however, that the failure by
any Bank to record any such amount on its books shall not affect the
obligations of the Borrower with respect thereto. In the case of any
dispute, action or proceeding relating to any amount payable
hereunder, the entries in each such account shall be conclusive
evidence of such amount absent manifest error. In case of any
discrepancy between the entries in the Agent's books and any Bank's
books, such Bank's books shall be considered correct in the absence of
manifest error.
(b) Notwithstanding the foregoing, if any Bank shall so
request for purposes of Section 10.08(e), the obligation to repay the
Committed Loans shall also be evidenced by a promissory note in the
form of Exhibit 2.05(b).
(c) The obligation to repay any Bid Loan shall also, if so
requested by the Bank making such Bid Loan, be evidenced by a
promissory note in the form of Exhibit 2.05(c).
(d) The Banks hereby agree to return to the Borrower on the
Restatement Date any promissory notes issued by the Borrower under the
Original Agreement.
6 Voluntary Termination or Reduction of the Commitments.
The Borrower may, at any time and from time to time, upon not less
than three Business Days' prior notice to the Agent, terminate the
Aggregate Commitments or permanently reduce the Aggregate Commitments
by an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof; provided, however, that no such
termination or reduction shall be permitted if, after giving effect
thereto and to any prepayment of Loans made on the effective date
thereof, the then outstanding principal amount of Committed Loans and
Bid Loans would exceed the Aggregate Commitments then in effect and,
provided, further, that once reduced in accordance with this Section
2.06, the Aggregate Commitments may not be increased. Any reduction
of the Aggregate Commitments shall be applied to each Bank's
Commitment in accordance with such Bank's Percentage Share.
7 Optional Prepayments.
(a) Subject to Section 3.11, the Borrower may upon notice to
the Agent, stating the proposed date and aggregate principal amount of
the prepayment, received by the Agent (i) not less than three Business
Days prior to the proposed date of prepayment, in the case of a
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prepayment of Eurodollar Loans and (ii) not less than one Business Day
prior to the proposed date of prepayment, in the case of a prepayment
of Reference Rate Loans, prepay ratably among the Banks, the
outstanding principal amount of any Committed Loans in whole or in
part, together with accrued interest to the date of such prepayment on
the principal amount prepaid. Each such partial prepayment shall be
in an aggregate principal amount of not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof; provided, however,
that if the aggregate amount of Eurodollar Loans comprised in the same
Borrowing shall be reduced as a result of any optional prepayment to
an amount less than $5,000,000, the Eurodollar Loans comprised in such
Borrowing shall automatically convert into Reference Rate Loans at the
end of the then current Interest Period. If any notice of prepayment
is given, the principal amount stated therein, together with accrued
interest to the date of prepayment, shall be due and payable on the
date specified in such notice.
(b) The Borrower may not voluntarily prepay any Bid Loan prior
to the maturity date thereof.
8 Repayment.
(a) The Committed Loans. The outstanding principal amount of
all Committed Loans shall be repaid on the Final Maturity Date.
(b) The Bid Loans. Each Bid Loan shall mature, and the
principal amount thereof shall be due and payable, on the last day of
the Interest Period applicable thereto; provided, however, that the
outstanding principal amount of all Bid Loans shall be repaid on the
Final Maturity Date.
9 Interest.
(a) Subject to Section 2.10, each Committed Loan shall bear
interest, at the option of the Borrower as follows,
(i) if such Committed Loan is a Reference Rate Loan, at a rate
per annum equal to the Reference Rate; and
(ii) if such Committed Loan is a Eurodollar Loan, at a rate per
annum equal to the sum of LIBOR plus the applicable margin set
forth below:
Debt Rating Applicable Margin
Level I Status .12%
Level II Status .15%
Level III Status .20%
Level IV Status .25%
Level V Status .30%
Level VI Status .35%
(b) Any change in the Debt Rating shall be effective as of the
date on which such change is first publicly announced by S&P or
notified to the Borrower by Moody's. Any change in the applicable
margin due to a change in the applicable Debt Rating shall be
effective on the effective date of such change in the Debt Rating and
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shall apply to all Eurodollar Loans that are outstanding at any time
during the period commencing on the effective date of such change in
the Debt Rating and ending on the date immediately preceding the
effective date of the next such change in the Debt Rating which
results in a change in the applicable margin.
(c) Accrued and unpaid interest in respect of each Committed
Loan shall be paid on each Interest Payment Date, on the date of any
prepayment or repayment of Committed Loans and, in the case of any
Reference Rate Loan, on each date such Loan is converted into a
Eurodollar Loan.
(d) The Borrower shall pay to each Bank which had made a Bid
Loan interest on the unpaid principal amount of such Bid Loan from the
date when made until paid in full, on each Interest Payment Date, a
rate per annum equal to LIBOR plus (or minus) the LIBOR Bid Margin, or
the Absolute Rate, as the case may be, as specified by such Bank in
its Competitive Bid pursuant to Section 2.04(b)(ii).
.2 Default Interest. During the continuation of any Event of
Default pursuant to Section 8.01(a), or after acceleration, the
Borrower shall pay, on demand, interest (after as well as before
judgment) on the principal amount of all Loans then outstanding, at a
rate per annum which is determined by increasing the rate of interest
then in effect pursuant to Section 2.09 by 2% per annum; provided,
however, that, on and after the expiration of the Interest Period
applicable to any Eurodollar Loan on the date of occurrence of such
Event of Default or acceleration, the principal amount of such Loan
shall, during the continuation of such Event of Default or
acceleration, bear interest at a rate per annum equal to the Reference
Rate plus 2%; and, provided, further, that if so requested by the
Borrower, the Majority Banks may, in their sole discretion, waive the
provisions of this Section 2.10.
.3 Continuation and Conversion Elections for Committed Borrowings
(a) The Borrower may upon irrevocable written notice to the
Agent in accordance with paragraph (b) below:
(i) elect to convert, on any Business Day, any Reference Rate
Loans (or any part thereof in an aggregate amount not less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof)
into Eurodollar Loans;
(ii) elect to convert, on the expiration date of any Interest
Period, any Eurodollar Loans maturing on such Interest Payment Date
(or any part thereof in an aggregate amount not less than
$5,000,000 or an integral multiple of $1,000,000 in excess
thereof) into Reference Rate Loans; or
(iii) elect to continue, on the expiration date of any Interest
Period, any Eurodollar Loans maturing on such Interest Payment
Date; provided, however, that if on the expiration date of any
Interest Period the aggregate amount of outstanding
Eurodollar Loans comprised in the same Committed Borrowing
shall have been reduced as a result of the conversion of part
thereof to an amount less
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than $5,000,000, the remaining Eurodollar Loans comprised in such
Borrowing shall automatically convert into Reference Rate Loans
on such date and on and after such date the right of the Borrower
to continue such Loans as Eurodollar Loans shall terminate.
(b) The Borrower shall deliver a notice of conversion or
continuation (a "Notice of Conversion/Continuation"), in substantially
the form of Exhibit 2.11, to the Agent not later than 12:00 noon (New
York City time) (i) three Business Days prior to the proposed date of
conversion or continuation, if the Committed Loans or any portion
thereof are to be converted into or continued as Eurodollar Loans; and
(ii) one Business Day prior to the proposed date of conversion, if the
Committed Loans or any portion thereof are to be converted into
Reference Rate Loans.
Each such Notice of Conversion/Continuation shall be by facsimile
confirmed immediately by telephone specifying therein:
(i) the proposed date of conversion or continuation;
(ii) the aggregate amount of Committed Loans to be converted or
continued;
(iii) the nature of the proposed conversion or continuation; and
(iv) the duration of the requested Interest Period.
(c) If, upon the expiration of any Interest Period applicable
to Eurodollar Loans, the Borrower shall have failed to select a new
Interest Period to be applicable to such Eurodollar Loans, or if an
Event of Default shall then have occurred and be continuing, the
Borrower shall be deemed to have elected to convert such Eurodollar
Loans into Reference Rate Loans effective as of the expiration date of
such current Interest Period.
(d) Upon receipt of a Notice of Conversion/Continuation, the
Agent shall promptly notify each Bank thereof or, if no timely notice
is provided, the Agent shall promptly notify each Bank of the details
of any automatic conversion. All conversions and continuations shall
be made pro rata among the Banks based on the respective outstanding
principal amounts of the Loans with respect to which such notice was
given held by each Bank.
(e) After giving effect to any conversion or continuation of
any Committed Loans, there shall not be more than six different
Interest Periods in effect in respect of all Committed Loans together.
FEES; PAYMENTS; TAXES; CHANGES IN CIRCUMSTANCES
2 Fees.
(a) (i) The Borrower agrees to pay to the Agent for the
account of each Bank a facility fee equal to the percentage per
annum set forth below times such Bank's Commitment (regardless of
utilization):
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Debt Rating Facility Fee
Level I Status .075%
Level II Status .085%
Level III Status .10%
Level IV Status .125%
Level V Status .15%
Level VI Status .20%
(i) Any change in the Debt Rating shall be effective as of the
date on which such change is first publicly announced by S&P or
notified to the Borrower by Moody's. Any change in the facility fee
due to a change in the applicable Debt Rating shall be effective on
the effective date of such change in the Debt Rating and shall apply
at any time during the period commencing on the effective date of such
change in the Debt Rating and ending on the date immediately preceding
the effective date of the next such change in the Debt Rating which
results in a change in the facility fee.
(ii) The facility fee shall accrue from the Restatement Date to
the Final Maturity Date and shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter commencing
in the calendar quarter ending on June 30, 1995 and on the Final
Maturity Date.
(b) The Borrower agrees to pay to the Agent, for the Agent's
own account, an agency fee in the amount and at the times set forth in
the Fee Letter.
3 Computation of Fees and Interest
(a) All computations of interest payable in respect of
Reference Rate Loans shall be made on the basis of a year of 365 days
or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest under this Agreement shall be made
on the basis of a year of 360 days and actual days elapsed. Interest
and fees shall accrue during each period during which interest or such
fees are computed from the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the Agent
pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Banks in the absence of manifest
error.
(c) Each Reference Bank shall use its best efforts to furnish
quotations of rates to the Agent as contemplated hereby for the
purposes of determining LIBOR for any Eurodollar Loan or LIBOR Bid
Loan. If any of the Reference Banks is unable or otherwise fails to
supply such rates to the Agent upon its request, LIBOR shall be
determined on the basis of the quotations of the remaining two
Reference Banks.
4 Payments by the Borrower.
(a) All payments (including prepayments) to be made by the
Borrower hereunder shall be made without set-off or counterclaim and
shall, except as expressly provided herein, be made to the Agent for
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the ratable account of the Banks at the Agent's Payment Office, in
dollars and in immediately available funds, not later than 12:00 noon
New York City time on the date specified herein; provided, however,
that unless otherwise specified herein, each payment in respect of a
Bid Loan shall be made directly to the relevant Bank to the Lending
Office of such Bank. The Agent will promptly after receiving any
payment of principal, interest, fees and other amounts from the
Borrower distribute to each Bank its Percentage Share (or other
applicable share as expressly provided herein) of such payment for the
account of its respective Lending Office. Any payment which is
received by the Agent after 12:00 noon (New York City time) shall be
deemed to have been received on the immediately succeeding Business
Day.
(b) Whenever any payment of a Committed Loan (and unless
otherwise stated in the relevant Competitive Bid Request, a Bid Loan)
shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of
interest and fees, as the case may be; provided, however, that if such
extension would cause any payment of principal of or interest on
Eurodollar Loans to be made in the next calendar month, such payment
shall be made on the immediately preceding Business Day.
(c) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Banks
hereunder that the Borrower will not make such payment in full, the
Agent may assume that the Borrower has made such payment in full to
the Agent on such date and the Agent may (but shall not be so
required), in reliance upon such assumption, cause to be distributed
to each Bank on such due date an amount equal to the amount then due
such Bank. If and to the extent the Borrower shall not have so made
such payment in full to the Agent, each Bank shall repay to the Agent,
on demand, the excess of the amount distributed to such Bank over the
amount, if any, paid by the Borrower, together with interest thereon
at the Federal Funds Rate, for each day from the date such amount is
distributed to such Bank to the date such Bank repays such amount to
the Agent; provided, however, that if any Bank shall fail to repay
such amount within three Business Days after demand therefor, such
Bank shall, from and after such third Business Day until payment is
made to the Agent, pay interest thereon at a rate per annum equal to
the sum of the Reference Rate plus 1%.
5 Payments by the Banks to the Agent.
(a) Unless the Agent shall have received notice from a Bank on
the Restatement Date, or, with respect to each Committed Borrowing
after the Restatement Date, at least one Business Day prior to the
date of such Borrowing that such Bank will not make available to the
Agent for the account of the Borrower the amount of such Bank's
Percentage Share of such Borrowing, the Agent may assume that such
Bank has made such amount available to the Agent on the date of such
Borrowing and the Agent may (but shall not be so required), in
reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent such Bank shall not
have so made such full amount available to the Agent and the Agent in
such circumstances makes available to the Borrower such amount, such
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Bank shall, within two Business Days following the date of such
Borrowing, make such amount available to the Agent, together with
interest at the Federal Funds Rate for and determined as of each day
during such period. If such amount is so made available, such payment
to the Agent shall constitute such Bank's Committed Loan on the date
of the Borrowing for all purposes of this Agreement. If such amount
is not made available to the Agent within two Business Days following
the date of such Borrowing, the Agent shall notify the Borrower of
such failure to fund and, on the third Business Day following the date
of such Borrowing, the Borrower shall pay such amount to the Agent for
the Agent's account, together with interest thereon for each day
elapsed since the date of such Borrowing, at a rate per annum equal to
the interest rate applicable at the time to the Loans comprising such
Borrowing. Nothing contained in this Section 3.04(a) shall relieve
any Bank which has failed to make available its Percentage Share of
any Committed Borrowing hereunder from its obligation to do so in
accordance with the terms hereof.
(b) The failure of any Bank to make any Committed Loan on the
date of any Committed Borrowing shall not relieve any other Bank of
its obligation hereunder to make a Loan on the date of such Borrowing
pursuant to the provisions contained herein, but no Bank shall be
responsible for the failure of any other Bank to make the Loan to be
made by such other Bank on the date of any Committed Borrowing.
6 Taxes.
(a) Subject to Section 3.05(g), any and all payments by the
Borrower to each Bank or the Agent under this Agreement shall be made
free and clear of, and without deduction or withholding for, any and
all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto incurred in
connection with any Borrowing pursuant to this Agreement, excluding,
in the case of each Bank and the Agent, such taxes (including income
taxes, franchise taxes or branch profit taxes) as are imposed on or
measured by such Bank's or the Agent's, as the case may be, net income
by the jurisdiction under the laws of which such Bank or the Agent, as
the case may be, is organized or maintains a Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes").
(b) In addition, the Borrower shall pay any present or future
stamp or documentary taxes, intangible taxes, mortgage recording taxes
or any other sales, excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to,
this Agreement or any other Loan Document (hereinafter referred to as
"Other Taxes").
(c) Subject to Section 3.05(g), the Borrower shall indemnify
and hold harmless each Bank and the Agent for the full amount of Taxes
or Other Taxes (including any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 3.05) paid by such
Bank or the Agent, as the case may be, and any liability (including
penalties, interest, additions to tax and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were
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correctly or legally asserted. Payment under this indemnification
shall be made within 30 days from the date such Bank or the Agent, as
the case may be, makes written demand therefor.
(d) If the Borrower shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum
payable hereunder to any Bank or the Agent, then, subject to Section
3.05(g),
(i) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.05) such
Bank or the Agent, as the case may be, receives an amount equal to
the sum it would have received had no such deductions been made;
(ii) the Borrower shall make such deductions; and
(iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law.
(e) Within 30 days after the date of any payment by the
Borrower of Taxes or Other Taxes, the Borrower shall furnish to the
Agent the original or a certified copy of a receipt evidencing such
payment, or other evidence of such payment satisfactory to the Agent.
(f) Each Bank which is a foreign Person (i.e., a Person other
than a United States Person for United States Federal income tax
purposes) hereby agrees that:
i) it shall, unless already delivered pursuant to the
Original Agreement, no later than on the Restatement Date (or, in the
case of a Bank which becomes a party hereto pursuant to Section 10.08
after the Restatement Date, the date upon which such Bank becomes a
party hereto) deliver to the Agent (two originals) and to the Borrower
(one original):
(A) if any Lending Office is located
in the United States of America, accurate and
complete signed copies of IRS Form 4224 or any
successor thereto ("Form 4224"), and/or
(B) if any Lending Office is located
outside the United States of America, accurate and
complete signed copies of IRS Form 1001 or any
successor thereto ("Form 1001"),
in each case indicating that such Bank is on the date
of delivery thereof entitled to receive payments of
principal, interest and fees for the account of such
Lending Office or Lending Offices under this Agreement
free from withholding of United States Federal income tax;
(ii) if at any time such Bank changes its Lending Office or
Lending Offices or selects an additional Lending Office it shall, at
the same time, but only to the extent the forms previously delivered
by it hereunder are no longer effective, deliver to the Agent (two
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originals) and to the Borrower (one original), in replacement for the
forms previously delivered by it hereunder:
(A) if such changed or additional
Lending Office is located in the United States of
America, accurate and complete signed originals of
Form 4224; or
(B) otherwise, accurate and complete
signed originals of Form 1001,
in each case indicating that such Bank is on the date
of delivery thereof entitled to receive payments of
principal, interest and fees for the account of such
changed or additional Lending Office under this Agreement
free from withholding of United States Federal income tax;
(iii) it shall, upon the occurrence of any event (including the
passing of time but excluding any event mentioned in clause (ii)
above) requiring a change in the most recent Form 4224 or Form 1001
previously delivered by such Bank, deliver to the Agent (two
originals) and to the Borrower (one original) accurate and complete
signed copies of Form 4224 or Form 1001 in replacement for the forms
previously delivered by such Bank;
(iv) it shall, promptly upon the request of the Agent or the
Borrower, deliver to the Agent and the Borrower, such other forms or
similar documentation as may be required from time to time by any
applicable law, treaty, rule or regulation in order to establish such
Bank's tax status for withholding purposes;
(v) if such Bank claims exemption from withholding tax under a
United States tax treaty by providing a Form 1001 and such Bank sells
or grants a participation of all or part of its rights under this
Agreement, it shall notify the Agent of the percentage amount in which
it is no longer the beneficial owner under this Agreement. To the
extent of this percentage amount, the Agent shall treat such Bank's
Form 1001 as no longer in compliance with this Section 3.05(f). In
the event a Bank claiming exemption from United States withholding tax
by filing Form 4224 with the Agent, sells or grants a participation in
its rights under this Agreement, such Bank agrees to undertake sole
responsibility for complying with the withholding tax requirements
imposed by Sections 1441 and 1442 of the Code; and
(vi) if the IRS or any authority of the United States of
America or other jurisdiction asserts a claim that the Agent or the
Borrower did not properly withhold tax from amounts paid to or for the
account of any Bank (because the appropriate form was not delivered,
was not properly executed, or because such Bank failed to notify the
Agent of a change in circumstances which rendered the exemption from
withholding tax ineffective), such Bank shall indemnify the Agent
and/or the Borrower, as applicable, fully for all amounts paid,
directly or indirectly, by the Agent and/or the Borrower, as tax or
otherwise, including penalties and interest, and including any taxes
imposed by any jurisdiction on the amounts payable to the Agent or the
Borrower under this Section 3.05(f), together with all costs, expenses
and attorneys' fees (including the allocated cost of in-house
counsel).
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Without limiting or restricting any Bank's right to increased amounts
under Section 3.05(d) from the Borrower upon satisfaction of such
Bank's obligations under the provisions of this Section 3.05(f), if
such Bank is a foreign Person and is entitled to a reduction in the
applicable withholding tax, the Agent may withhold from any interest
to such Bank an amount equivalent to the applicable withholding tax
after taking into account such reduction. If the forms or other
documentation required by clause (i) above are not delivered to the
Agent, then the Agent may withhold from any interest payment to the
Bank not providing such forms or other documentation, an amount
equivalent to the applicable withholding tax. In addition, the Agent
may also withhold against periodic payments other than interest
payments to the extent United States withholding tax is not eliminated
by obtaining Form 4224 or Form 1001.
(g) The Borrower shall not be required to pay any additional
amounts in respect of United States Federal income tax pursuant to
Section 3.05(d) to any Bank for the account of any Lending Office of
such Bank:
(i) if the obligation to pay such additional amounts would not
have arisen but for a failure by such Bank to comply with its
obligations under Section 3.05(f) in respect of such Lending Office;
(ii) if such Bank shall have delivered to the Agent and the
Borrower a Form 4224 in respect of such Lending Office pursuant to
Sections 3.05(f)(i)(A), 3.05(f)(ii)(A) or 3.05(f)(iii) and such Bank
shall not at any time be entitled to exemption from deduction or
withholding of United States Federal income tax in respect of payments
by the Borrower hereunder for the account of such Lending Office for
any reason other than a change in United States law or regulations or
in the official interpretation of such law or regulations by any
Governmental Authority charged with the interpretation or
administration thereof (whether or not having the force of law) after
the date of delivery of such Form 4224; or
(iii) if such Bank shall have delivered to the Agent and the
Borrower a Form 1001 in respect of such Lending Office pursuant to
Sections 3.05(f)(i)(B), 3.05(f)(ii)(B) or 3.05(f)(iii) and such Bank
shall not at any time be entitled to exemption from deduction or
withholding of United States Federal income tax in respect of payments
by the Borrower hereunder for the account of such Lending Office for
any reason other than a change in United States law or regulations or
any applicable tax treaty or regulations or in the official
interpretation of any such law, treaty or regulations by any
Governmental Authority charged with the interpretation or
administration thereof (whether or not having the force of law) after
the date of delivery of such Form 1001.
(h) Any and all present or future Taxes, Other Taxes and
related liabilities (including penalties, interest, additions to tax
and expenses) which are not paid by the Borrower pursuant to and as
required by this Section 3.05 shall be paid by the Bank which received
the principal, interest or fees in respect of which such Taxes, Other
Taxes or related liabilities are payable. Any and all present or
future Taxes or Other Taxes which are required by law to be deducted
or withheld from or in respect of any sum payable hereunder to any
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Bank and which are not paid by the Borrower pursuant to and as
required by this Section 3.05 will be deducted or withheld by the
Agent without any increase in the sum payable as provided in Section
3.05(d). Each Bank agrees to indemnify the Agent and hold the Agent
harmless for the full amount of any and all present or future Taxes,
Other Taxes and related liabilities (including penalties, interest,
additions to tax and expenses, and any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable to the Agent under this Section
3.05(h)) which are imposed on or with respect to principal, interest
or fees payable to such Bank hereunder and which are not paid by the
Borrower pursuant to this Section 3.05, whether or not such Taxes,
Other Taxes or related liabilities were correctly or legally asserted.
This indemnification shall be made within 30 days from the date the
Agent makes written demand therefor.
7 Sharing of Payments, Etc. If other than as provided in
Section 3.05, 3.08, 3.09, 3.10, 3.11 or 3.12, any Bank shall obtain
any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) on account of any Committed Loan
made by it and, after acceleration of all Obligations pursuant to
Section 8.02(b), in respect of any Obligation owing to it (including
with respect to any Bid Loan), in the case of the Committed Loan, in
excess of its Percentage Share of payments on account of the Committed
Loans obtained by all the Banks and, after acceleration, in excess of
its pro rata share of all Obligations, such Bank shall forthwith (a)
notify the Agent of such fact and (b) purchase from the other Banks
such participations in the Committed Loans made by them or, after
acceleration, in all Obligations owing to them, as shall be necessary
to cause such purchasing Bank to share the excess payment ratably with
each of the other Banks according to their respective Percentage
Shares or, after acceleration, their pro rata shares of all
Obligations then owing to them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such
purchasing Bank, such purchase shall to the extent of such recovery be
rescinded and each other Bank shall repay to the purchasing Bank the
purchase price thereto together with an amount equal to such paying
Bank's ratable share (according to the proportion of (i) the amount of
such paying Bank's required repayment to (ii) the total amount so
recovered from the purchasing Bank) of any interest or other amount
paid or payable by the purchasing Bank in respect of the total amount
so recovered. The Borrower agrees that any Bank so purchasing a
participation from another Bank pursuant to the provisions of this
Section 3.06 may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of set-off) with respect to
such participation as fully as if such Bank were the direct creditor
of the Borrower in the amount of such participation. The Agent will
keep records (which shall be conclusive and binding in the absence of
manifest error), of participations purchased pursuant to this Section
3.06 and will in each case notify the Banks following any such
purchases.
8 Inability to Determine. If with respect to any Interest
Period for Eurodollar Loans, either (a) any two Reference Banks shall
fail to notify the Agent of the rate of interest on the basis of which
LIBOR is to be determined as set forth in the definition of LIBOR or
(b) the Majority Banks shall notify the Agent that LIBOR for such
Interest Period will not adequately and fairly reflect the cost to
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such Majority Banks of making, funding or maintaining their Eurodollar
Loans for such Interest Period (after giving effect to any event
giving rise to additional interest on such Loans pursuant to Section
3.12), the Agent shall forthwith so notify the Borrower and the Banks,
whereupon the obligations of the Banks to make or continue Committed
Loans as Eurodollar Loans or to convert Committed Loans into
Eurodollar Loans at the end of the then current Interest Period shall
be suspended until the Agent upon the instruction of the Majority
Banks revokes such notice. Upon receipt of such notice, the Borrower
may revoke its Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If the Borrower does
not revoke such notice, the Banks shall make, convert or continue the
Committed Loans, as proposed by the Borrower, in the amount specified
in the applicable notice submitted by the Borrower, but such Loans
shall be made, converted or continued as Reference Rate Loans instead
of Eurodollar Loans.
9 Increased Costs. If any Bank shall determine that, due to
either (a) the introduction of any Requirement of Law or any change
(other than any change by way of imposition of or increase in reserve
requirements included in the Eurodollar Reserve Percentage) in or in
the interpretation thereof or (b) the compliance with any guideline or
request from any central bank or other Governmental Authority (whether
or not having the force of law), there shall be any increase in the
cost to such Bank of agreeing to make or making, funding or
maintaining any Committed Loan, the Borrower shall be liable for, and
shall from time to time, upon demand by such Bank (with a copy of such
demand to the Agent), pay to the Agent for the account of such Bank,
additional amounts sufficient to compensate such Bank for such
increased costs.
10 Illegality.
(a) If any Bank shall determine that the introduction of any
Requirement of Law, or any change in or in the interpretation thereof
has made it unlawful, or any central bank or other Governmental
Authority shall assert that it is unlawful, for such Bank or its
Lending Office to make or continue to fund Loans as Eurodollar Loans
or to convert Loans into Eurodollar Loans, then, on notice thereof by
such Bank to the Borrower through the Agent, the obligation of such
Bank to make or to continue to fund Loans as Eurodollar Loans or to
convert any Loans into Eurodollar Loans shall be suspended until such
Bank shall have notified the Agent and the Borrower that the
circumstances giving rise to such determination no longer exist.
(b) If a Bank shall determine that it is unlawful to maintain
any Eurodollar Loan made by such Bank, the Borrower shall prepay in
full all Eurodollar Loans of such Bank then outstanding, together with
interest accrued thereon, either on the last day of the then current
Interest Period applicable to each such Eurodollar Loan if such Bank
may lawfully continue to maintain such Eurodollar Loan to such day, or
immediately, together with any amounts required to be paid pursuant to
Section 3.11, if such Bank may not lawfully continue to maintain such
Eurodollar Loan to such day, unless the Borrower, on or prior to the
date on which it would otherwise be required to prepay such Eurodollar
Loan, converts all Eurodollar Loans of such Bank then outstanding into
Reference Rate Loans.
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(c) Notwithstanding the foregoing, if the obligation of any
Bank to make or maintain Eurodollar Loans has been suspended, the
Borrower may elect by giving notice to such Bank through the Agent
that all Loans which would otherwise be made or maintained by such
Bank as Eurodollar Loans shall be instead Reference Rate Loans.
.4 Capital Adequacy. If any Bank shall have determined that
the compliance with any Requirement of Law regarding capital adequacy,
or any change therein or in the interpretation or application thereof
or compliance by such Bank (or its Lending Office) or any corporation
controlling such Bank with any request or directive regarding capital
adequacy (whether or not having the force of law) from any central
bank or other Governmental Authority, affects or would affect the
amount of capital required or expected to be maintained by such Bank
or any corporation controlling such Bank and such Bank (taking into
consideration such Bank's or such corporation's policies with respect
to capital adequacy and such Bank's desired return on capital)
determines that the amount of such capital is increased as a
consequence of such Bank's Commitment, loans or obligations under this
Agreement with respect to any Committed Borrowing then from time to
time, upon demand of such Bank (with a copy of such demand to the
Agent), the Borrower shall be liable for, and shall pay to the Agent
for the account of such Bank, as specified by such Bank, additional
amounts sufficient to compensate such Bank for such increase.
.5 Funding Losses. The Borrower agrees to reimburse each
Bank and to hold each Bank harmless from any loss, cost or expense
which such Bank may sustain or incur as a consequence of:
(a) any failure of the Borrower to borrow, continue or convert
a Eurodollar Loan after the Borrower has given (or is deemed to have
given) a Notice of Borrowing or a Notice of Conversion/Continuation;
(b) any prepayment or payment of a Eurodollar Loan on a day
which is not the last day of the Interest Period with respect thereto;
(c) any failure of the Borrower to make any prepayment after
the Borrower has given a notice in accordance with Section 2.07; or
(d) the conversion of any Eurodollar Loan to a Reference Rate
Loan on a day that is not the last day of the respective Interest
Period pursuant to Section 2.11;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Eurodollar Loans
hereunder or from fees payable to terminate the deposits from which
such funds were obtained.
.6 Additional Interest on Eurodollar Loans. The Borrower
shall pay to each Bank, at the request of such Bank (but not more
frequently than once in each calendar quarter), as long as such Bank
shall be required under regulations of the Federal Reserve Board to
maintain reserves with respect to liabilities or assets consisting of
or including Eurocurrency Liabilities, additional interest on the
unpaid principal amount of each Eurodollar Loan of such Bank from the
date such Eurodollar Loan is made until such principal amount is paid
in full, at a rate per annum equal at all times to the remainder
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obtained by subtracting (a) LIBOR for the Interest Period for such
Eurodollar Loan from (b) the rate obtained by dividing such LIBOR by a
percentage equal to 100% minus the Eurodollar Reserve Percentage of
such Bank for such Interest Period, payable on each date interest in
respect of such Eurodollar Loan is payable. Notwithstanding the
provisions of the previous sentence, the Borrower shall not be
obligated to pay to any Bank any additional interest in respect of
Eurodollar Loans made by such Bank for any period commencing more than
three months prior to the date on which such Bank notifies the
Borrower by delivering a certificate from a financial officer of such
Bank, that such Bank is required to maintain reserves with respect to
Eurocurrency Liabilities.
.7 Certificates of Banks. Any Bank claiming reimbursement or
compensation pursuant to Section 3.05, 3.08, 3.10, 3.11 and/or 3.12
shall deliver to the Borrower (with a copy to the Agent) a certificate
setting forth in reasonable detail the basis for computing the amount
payable to such Bank hereunder and such certificate shall be
conclusive and binding on the Borrower in the absence of manifest
error. Unless otherwise specifically provided herein, the Borrower
shall pay to any Bank claiming compensation or reimbursement from the
Borrower pursuant to Section 3.08, 3.10, 3.11 or 3.12, the amount
requested by such Bank no later than five Business Days after such
demand.
.8 Change of Lending Office; Replacement Bank.
(a) Each Bank agrees that upon the occurrence of any event
giving rise to the operation of Section 3.05(c) or (d) or Section 3.08
or 3.09 with respect to such Bank, it will if so requested by the
Borrower, use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate a different
Lending Office for any Loans affected by such event with the object of
avoiding the consequence of the event giving rise to the operation of
such Section; provided, however, that such designation would not, in
the judgment of such Bank, be otherwise disadvantageous to such Bank.
Nothing in this Section 3.14 shall affect or postpone any of the
obligations of the Borrower or the right of any Bank provided in
Section 3.05(c) or (d) or Section 3.08 or 3.09.
(b) In the event the Borrower becomes obligated to pay
additional amounts to any Bank pursuant to Sections 3.05(c) or (d) or
3.08, or if it becomes illegal for any Bank to continue to fund or to
make Eurodollar Loans pursuant to Section 3.09, as a result of any
condition described in any such Section, then, unless such Bank has
theretofore taken steps to remove or cure, and has removed or cured,
the conditions creating the cause for such obligation to pay such
additional amounts or for such illegality, the Borrower may designate
another Bank which is reasonably acceptable to the Agent and the
Majority Banks (such Bank being herein called a "Replacement Bank") to
purchase the Committed Loans of such Bank and such Bank's rights
hereunder, without recourse to or warranty by, or expense to, such
Bank for a purchase price equal to the outstanding principal amount of
the Committed Loans payable to such Bank plus any accrued but unpaid
interest on such Loans and accrued but unpaid fees in respect of such
Bank's Commitment and any other amounts payable to such Bank under
this Agreement, and to assume all the obligations of such Bank
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hereunder (except for such rights as survive repayment of the Loans),
and, upon such purchase, such Bank shall no longer be a party hereto
or have any rights hereunder (except those related to any Bid Loans of
such Bank which remain outstanding and those that survive full payment
hereunder) and shall be relieved from all obligations to the Borrower
hereunder, and the Replacement Bank shall succeed to the rights and
obligations of such Bank hereunder.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and each Bank
that:
2 Corporate Existence; Compliance with Law. The Borrower
and each of its Subsidiaries:
(a) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation;
(b) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires
such qualification except where the failure to so qualify has no
reasonable likelihood of having a Material Adverse Effect;
(c) has all requisite corporate power and authority to own,
pledge, mortgage, hold under lease and operate its properties, and to
conduct its business as now or currently proposed to be conducted;
(d) is in compliance with its certificate of incorporation and
by-laws; and
(e) is in compliance with all other Requirements of Law except
such non-compliance as has no reasonable likelihood of having a
Material Adverse Effect.
3 Corporate Authorization; No Contravention; Governmental
Authorization. The execution, delivery and performance by the
Borrower of the Loan Documents:
(a) are within the respective corporate powers of the Borrower;
(b) have been duly authorized by all necessary corporate
action, including the consent of shareholders where required;
(c) do not and will not:
(i) contravene the certificate of incorporation or by-laws of
the Borrower;
(ii) violate any other Requirement of Law (including the
Securities Exchange Act of 1934, Regulations G, T, U and X of the
Federal Reserve Board or any order or decree of any court or other
Governmental Authority);
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(iii) conflict with or result in the breach of, or constitute a
default under, any Contractual Obligation binding on or affecting
the Borrower or any of its properties, if such breach or default
has any reasonable likelihood of having a Material Adverse
Effect, or any order, injunction, writ or decree of any
Governmental Authority to which the Borrower or any of its
properties is subject; or
(iv) result in the creation or imposition of any Lien upon any
of the property of the Borrower; and
(d) do not require the consent, authorization by or approval
of or notice to or filing or registration with any Governmental
Authority or any other Person other than those which have been duly
obtained, made or given.
4 Enforceable Obligations. This Agreement and the other
Loan Documents have been duly executed and delivered by the Borrower.
This Agreement and each other Loan Document are legal, valid and
binding obligations of the Borrower, enforceable against the Borrower
in accordance with their respective terms except as such enforcement
may be limited by applicable bankruptcy, insolvency, reorganization or
other similar laws or equitable principles relating to or limiting
creditors' rights generally.
5 Taxes. The Borrower and its Subsidiaries have filed all
Federal and other material tax returns and reports required to be
filed, and have paid all Federal and other material taxes and
assessments payable by them, to the extent the same have become due
and payable and before they have become delinquent, except those which
are currently being contested in good faith by appropriate proceedings
and for which adequate reserves have been provided in accordance with
GAAP, provided the non-payment thereof has no reasonable likelihood of
having a Material Adverse Effect. The Borrower does not know of any
proposed material tax assessment against the Borrower or any of its
Subsidiaries and in the opinion of the Borrower, all potential tax
liabilities are adequately provided for on the books of the Borrower
and its Subsidiaries. The statute of limitations for assessment or
collection of Federal income tax has expired for all federal income
tax returns filed by the Borrower for all tax years up to and
including the tax year ended in March, 1987 and filed by Holly Farms
Corporation up to and including the tax year ended on May 31, 1987.
(a) Financial Matters The consolidated balance sheet of the
Borrower and its Subsidiaries as of the last day of the fiscal year of
the Borrower ended on October 1, 1994 and as of the last day of the
fiscal quarter of the Borrower ended on April 1, 1995 and the related
consolidated statements of income, shareholders' equity and cash flows
of the Borrower and its Subsidiaries for such fiscal year and quarter,
with, in the case of said fiscal year, reports thereon by Ernst &
Young:
(i) are complete, accurate and fairly present the financial
condition of the Borrower and its Subsidiaries as of the respective
dates thereof and for the respective periods covered thereby;
(ii) were prepared in accordance with GAAP consistently applied
throughout the periods covered thereby, except as set forth in the
notes thereto; and
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(iii) except as specifically disclosed in Schedule 4.05, show
all material indebtedness and other liabilities, direct or contingent,
of the Borrower and its consolidated Subsidiaries as of the dates
thereof, including liabilities for taxes, material commitments and
long-term leases.
(b) Since October 1, 1994, there has been no Material Adverse
Effect and no development which has any reasonable likelihood of
having a Material Adverse Effect.
(c) The Borrower is, and the Borrower and its Subsidiaries
are, on a consolidated basis, Solvent.
6 Litigation. There are no actions, suits, proceedings,
claims or disputes pending, or to the best knowledge of the Borrower,
threatened, against the Borrower or any of its Subsidiaries before any
court or other Governmental Authority or any arbitrator that have a
reasonable likelihood of having a Material Adverse Effect. All
pending actions or proceedings affecting the Borrower or any of its
Subsidiaries as of the date hereof and involving claims in excess of
$10,000,000 are described in Schedule 4.06.
7 Subsidiaries.
(a) A complete and correct list of all Subsidiaries of the
Borrower as of the Restatement Date, showing, as to each Subsidiary,
the correct name thereof, the jurisdiction of its incorporation and
the percentage of shares of each class outstanding owned by the
Borrower and each other Subsidiary of the Borrower is set forth in
Schedule 4.07(a).
(b) All of the outstanding shares of each of the Subsidiaries
listed on Schedule 4.07(a) have been validly issued, are fully paid
and non-assessable and are owned by the Borrower or another Subsidiary
of the Borrower, free and clear of any Lien.
(c) The Borrower has no obligation to capitalize any of its
Subsidiaries.
(d) A complete and correct list of all joint ventures in which
the Borrower or any of its Subsidiaries, is a partner is set forth in
Schedule 4.07(d).
8 Liens. There are no Liens of any nature whatsoever on any
properties of the Borrower or any of its Subsidiaries other than
Permitted Liens.
9 No Burdensome Restrictions; No Defaults.
(a) Neither the Borrower nor any of its Subsidiaries is a
party to or bound by any Contractual Obligation, or subject to any
charter or corporate restriction or any Requirement of Law, which has
any reasonable likelihood of having a Material Adverse Effect.
(b) Neither the Borrower nor any of its Subsidiaries is in
default under or with respect to any Contractual Obligation in any
respect which, individually or together with all such defaults, has a
reasonable likelihood of having a Material Adverse Effect.
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(c) No Default or Event of Default exists or would result from
the incurring of any Obligations by the Borrower or any of its
Subsidiaries.
.9 Investment Company Act. Neither the Borrower nor any of
its Subsidiaries is an "investment company" or an "affiliated person"
of, or "promoter" or "principal underwriter" for, an "investment
company", as such terms are defined in the Investment Company Act of
1940, as amended. The making of the Loans by the Banks and the
application of the proceeds and repayment thereof by the Borrower and
the consummation of the transactions contemplated by the Loan
Documents will not violate any provision of such Act or any rule,
regulation or order issued by the Securities and Exchange Commission
thereunder.
.10 Use of Proceeds; Margin Regulations. No part of the
proceeds of any Loan will be used, and no Loan will otherwise be, in
violation of Regulation G, T, U or X of the Federal Reserve Board.
.11 Assets.
(a) The Borrower and each of its Subsidiaries has good record
and marketable title to all real property necessary or used in the
ordinary conduct of its business, except for Permitted Liens and such
defects in title as have no reasonable likelihood, individually or in
the aggregate, of having a Material Adverse Effect.
(b) The Borrower and each of its Subsidiaries owns or licenses
or otherwise has the right to use all material licenses, permits,
patents, trademarks, service marks, trade names, copyrights,
franchises, authorizations and other intellectual property rights that
are necessary for the operation of its business, without infringement
of or conflict with the rights of any other Person with respect
thereto, except for such infringements or conflicts as have no
reasonable likelihood of having a Material Adverse Effect. No
material slogan or other advertising device, product, process, method
or other material now employed, or now contemplated to be employed, by
the Borrower or any of its Subsidiaries infringes upon or conflicts
with any rights owned by any other Person except for such
infringements or conflicts as have no reasonable likelihood,
individually or in the aggregate, of having a Material Adverse Effect.
.12 Labor Matters. Except as disclosed in Schedule 4.13,
there are no strikes or other labor disputes pending or, to the
knowledge of the Borrower, threatened against the Borrower or any of
its Subsidiaries which have any reasonable likelihood of having a
Material Adverse Effect. No significant unfair labor practice
complaint is pending or, to the knowledge of the Borrower, threatened,
against the Borrower or any of its Subsidiaries before any
Governmental Authority.
.13 Environmental Matters. Except as disclosed in Schedule
4.14:
(a) the on-going operations of the Borrower and each of its
Subsidiaries comply in all respects with all Environmental Laws except
such non-compliance as has no reasonable likelihood of having a
Material Adverse Effect;
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(b) the Borrower and each of its Subsidiaries have obtained
all environmental, health and safety permits necessary or required for
its operations, all such permits are in good standing, and the
Borrower and each of its Subsidiaries is in compliance with all
material terms and conditions of such permits;
(c) none of the Borrower, any of its Subsidiaries or any of
their present property or operations (or past property or operations)
is subject to any outstanding written order from or agreement with any
Governmental Authority nor subject to any judicial or docketed
administrative proceeding, respecting any Environmental Claim or
Hazardous Material which, in each case, has any reasonable likelihood
of having a Material Adverse Effect;
(d) there are no conditions or circumstances associated with
any property of the Borrower or any of its Subsidiaries formerly owned
and operated by the Borrower or any of its Subsidiaries or any of
their predecessors or with the former operations, including off-site
disposal practices, of the Borrower or its Subsidiaries or their
predecessors which may give rise to Environmental Claims which in the
aggregate have any reasonable likelihood of having a Material Adverse
Effect; and
(e) there are no conditions or circumstances which may give
rise to any Environmental Claim arising from the operations of the
Borrower or its Subsidiaries, including Environmental Claims
associated with any operations of the Borrower or its Subsidiaries,
which have any reasonable likelihood of having a Material Adverse
Effect. In addition, (i) neither the Borrower nor any of its
Subsidiaries has any underground storage tanks (A) that are not
properly permitted under applicable Environmental Laws or (B) that to
the best of the Borrower's knowledge, are leaking or dispose of
Hazardous Materials off-site and (ii) the Borrower and each of its
Subsidiaries has notified all of its employees of the existence, if
any, of any health hazard arising from the conditions of their
employment and have met all notification requirements under Title III
of CERCLA and under OSHA and all other Environmental Laws.
.14 Completeness. None of the representations or warranties
of the Borrower contained herein or in any other Loan Document or in
any certificate or written statement furnished by or on behalf of the
Borrower pursuant to the provisions of this Agreement or any other
Loan Document contain any untrue statement of a material fact or omit
to state any material fact necessary to make the statements contained
herein or therein, in light of the circumstances under which they are
made, not misleading. There is no fact known to the Borrower which
the Borrower has not disclosed to the Banks which may have a Material
Adverse Effect.
.15 ERISA.
(a) Neither the Borrower nor any member of its Controlled
Group contributes to any Plan other than those set forth in Schedule
4.16.
(b) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and any other applicable
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Federal or state law and rules and regulations promulgated thereunder.
With respect to each Plan (other than a Multiemployer Plan) all
material reports required under ERISA or any other applicable law or
regulation to be filed with the relevant Governmental Authority, the
failure of which to file could reasonably result in liability of the
Borrower or any member of its Controlled Group in excess of $500,000
have been duly filed and all such reports are true and correct in all
material respects as of the date given.
(c) Except as set forth in Schedule 4.16, no Plan has been
terminated nor has any accumulated funding deficiency (as defined in
Section 412(a) of the Code) been incurred (without regard to any
waiver granted under Section 412 of the Code) nor has any funding
waiver from the IRS been received or requested.
(d) Neither the Borrower nor any member of its Controlled
Group has failed to make any contribution or pay any amount due or
owing as required by Section 412 of the Code or Section 302 of ERISA
or the terms of any such Plan prior to the due date (including
permissible extensions thereof) under Section 412 of the Code and
Section 302 of ERISA.
(e) There has been no ERISA Event or any event requiring
disclosure under Section 4041(c)(3)(C), 4068(f), 4063(a) or 4043(b) of
ERISA with respect to any Plan or trust of the Borrower or any member
of its Controlled Group.
(f) Except as set forth in Schedule 4.16, the value of the
assets of each Plan (other than a Multiemployer Plan) equalled or
exceeded the present value of the benefit liabilities, as defined in
Title IV of ERISA, of each such Plan as of the most recent valuation
date using Plan actuarial assumptions at such date.
(g) There are no pending claims, lawsuits or actions (other
than routine claims for benefits in the ordinary course) asserted or
instituted against, and neither the Borrower nor any member of its
Controlled Group has knowledge of any threatened litigation or claims
against, (i) the assets of any Plan or trust or against any fiduciary
of a Plan with respect to the operation of such Plan which has any
reasonable likelihood of having a Material Adverse Effect or (ii) the
assets of any employee welfare benefit plan maintained by the Borrower
or any member of its Controlled Group within the meaning of Section
3(1) of ERISA or against any fiduciary thereof with respect to the
operation of any such Plan which has any reasonable likelihood of
having a Material Adverse Effect.
(h) Neither the Borrower nor any member of its Controlled
Group has engaged in any prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, in connection with
any Plan.
(i) Neither the Borrower nor any member of its Controlled
Group (i) has incurred or reasonably expects to incur (A) any
liability under Title IV of ERISA (other than premiums due under
Section 4007 of ERISA to the PBGC) or (B) any withdrawal liability
(and no event has occurred which with the giving of notice under
Section 4219 of ERISA would result in such liability) under Section
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4201 of ERISA as a result of a complete or partial withdrawal (within
the meaning of Section 4203 or 4205 of ERISA) from a Multiemployer
Plan or (C) any liability under Section 4062 of ERISA to the PBGC or
to a trustee appointed under Section 4042 of ERISA, or (ii) has
withdrawn from any Multiemployer Plan.
(j) Neither the Borrower nor any member of its Controlled
Group nor any organization to which the Borrower or any member of its
Controlled Group is a successor or parent corporation within the
meaning of Section 4069(b) of ERISA has engaged in a transaction
within the meaning of Section 4069 of ERISA.
(k) Except as set forth in Schedule 4.16, neither the Borrower
nor any member of its Controlled Group maintains or has established
any welfare benefit plan within the meaning of Section 3(1) of ERISA
which provides for (i) continuing benefits or coverage for any
participant or any beneficiary of any participant after such
participant's termination of employment except as may be required by
the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA") and the regulations thereunder, and at the expense of the
participant or the beneficiary of the participant, or (ii) retiree
medical liabilities. The Borrower and each member of its Controlled
Group which maintains a welfare benefit plan within the meaning of
Section 3(1) of ERISA has complied with any applicable notice and
continuation requirements of COBRA and the regulations thereunder,
except where the failure to so comply could not result in the loss of
a tax deduction or imposition of a tax or other penalty on the
Borrower or any member of its Controlled Group.
.16 Insurance. The properties of the Borrower and its
Subsidiaries are insured with financially sound and reputable
insurance companies, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in
similar business and owning similar properties in localities where the
Borrower and its Subsidiaries operate.
CONDITIONS PRECEDENT
1 Conditions Precedent to Effectiveness. The effectiveness
of this Agreement and the obligation of each Bank to make its first
Committed Loan after the Restatement Date is subject to the condition
that the Agent shall have received the following, each, unless
specified below, dated the Restatement Date, in form and substance
satisfactory to the Agent, each Bank and their respective counsel and
(other than the promissory notes, if any) in sufficient copies for
each Bank:
(a) Credit Agreement and Notes. This Agreement executed by
the Borrower, each Co-Agent, the Agent and each of the Banks and any
promissory notes requested by the Banks pursuant to Section 2.05;
(b) Board Resolutions; Approvals; Incumbency Certificates.
(i) Copies of the resolutions of the Executive Committee of
the Board of Directors of the Borrower approving and authorizing the
execution, delivery and performance by the Borrower of this Agreement
and the other Loan Documents to be delivered hereunder, and
authorizing the borrowing of the Loans, certified as of the
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Restatement Date by the Secretary or an Assistant Secretary of the
Borrower; and
(ii) A certificate of the Secretary or Assistant Secretary of
the Borrower certifying the names and true signatures of the officers
of the Borrower authorized to execute and deliver this Agreement and
all other Loan Documents to be delivered hereunder;
(c) Articles of Incorporation; By-laws and Good Standing.
Each of the following documents:
(i) the articles or certificate of incorporation of the
Borrower as in effect on the Restatement Date, certified by the
Secretary of State of Delaware as of a recent date and by the
Secretary or Assistant Secretary of the Borrower as of the Restatement
Date and the by-laws of the Borrower as in effect on the Restatement
Date, certified by the Secretary or Assistant Secretary of the
Borrower as of the Restatement Date; and
(ii) good standing certificates as of a recent date for the
Borrower from the Secretaries of State of Arkansas, Delaware, North
Carolina, Texas and Virginia;
(d) Legal Opinion. A favorable opinion, dated the Restatement
Date and addressed to the Agent and the Banks of Corporate Counsel of
the Borrower and its Subsidiaries, in substantially the form of
Exhibit 5.01 and as to such other matters as any Bank through the
Agent may reasonably request (and the Borrower hereby instructs such
counsel to deliver such opinion);
(e) Certificate. A certificate signed by a Responsible
Officer of the Borrower, dated as of the Restatement Date, stating
that:
(i) the representations and warranties contained in Article IV
are true and correct on and as of such date, as though made on and as
of such date;
(ii) no Default or Event of Default exists or would result from
the initial Borrowing hereunder; and
(iii) there has occurred since October 1, 1994, no Material
Adverse Effect; and
(f) Other Documents. Such other approvals, opinions or
documents as the Agent or any Bank may request.
2 Additional Conditions Precedent to the First Committed
Borrowing after the Restatement Date. The obligation of each Bank to
make its first Committed Loan after the Restatement Date is subject to
the further conditions precedent that:
(a) Fees, Costs and Expenses. The Borrower shall have paid
all accrued and unpaid fees payable under the Original Agreement to
the extent due and payable on or before the Restatement Date and shall
also have paid all costs and expenses referred to in Section 10.04
(including legal fees and expenses and the allocated cost of in-house
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counsel) to the extent such costs and expenses are invoiced at least
two Business Days prior to the Restatement Date.
(b) Original Agreement. All loans outstanding under the
Original Agreement shall be simultaneously repaid, prepaid or
refinanced hereunder; provided, however, that any Existing Bid Loans
outstanding under the Original Agreement on the Restatement Date shall
remain outstanding under this Agreement as if the Existing Bid Loans
were Bid Loans made hereunder.
(c) Original Banks. Each bank which is a party to the
Original Agreement but whose name does not appear on the signature
pages hereof shall have consented to the amendment and restatement of
the Original Agreement and confirmed that it will not be a party to
this Agreement by executing and delivering a letter in the form of
Exhibit 5.02 and each Bank not a party to the Original Agreement by
signing this Agreement shall have become a Bank for all purposes of
this Agreement.
3 Conditions Precedent to All Borrowings. The obligation of
each Bank to make any Loan (including its first Committed Loan and any
Bid Loan as to which there has been an offer and acceptance of terms
pursuant to Section 2.04) on or after the Restatement Date shall be
subject to the further conditions precedent that:
(a) Notice of Borrowing. In the case of a Committed
Borrowing, the Agent shall have received a Notice of Borrowing as
required by Section 2.02.
(b) Continuation of Representations and Warranties. The
representations and warranties contained in Article IV and in each
other Loan Document shall be true and correct on and as of the date of
borrowing with the same effect as if made on and as of such date
(except for representations and warranties expressly relating to an
earlier date, in which case they shall be true and correct as of such
earlier date).
(c) No Existing Default. No Default or Event of Default shall
exist and be continuing or shall result from the Loan being made on
such date.
(d) Other Assurances. The Agent shall have received such
other approvals, opinions or documents as any Bank through the Agent
may reasonably request related to the transactions contemplated
hereby.
Each Notice of Borrowing and Competitive Bid Request submitted by
the Borrower hereunder shall constitute a representation and warranty
by the Borrower hereunder, as of the date of each such notice,
application or request and as of the date of each Borrowing relating
thereto, that the conditions in this Section 5.03 are satisfied.
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AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that as long as any Bank shall
have any Commitment hereunder or any Loan or other Obligation shall
remain unpaid or unsatisfied, unless the Majority Banks waive
compliance in writing:
4 Compliance with Laws, Etc. The Borrower shall comply, and
cause each of its Subsidiaries to comply, with all applicable
Requirements of Law, except such as may be contested in good faith by
appropriate proceedings and which has no reasonable likelihood of
having a Material Adverse Effect.
5 Use of Proceeds. The Borrower shall use the proceeds of
any Loan hereunder made on or after the Restatement Date to refinance
Indebtedness outstanding under the Original Agreement and for working
capital and other general corporate purposes (including capital
expenditures and acquisitions and to support the issuance of
commercial paper) not in contravention of any Requirement of Law and
consistent with the representations and warranties contained herein;
provided, however, that the proceeds of any Loan hereunder may not be
used to finance the purchase or other acquisition of Stock in any
Person if such purchase or acquisition is opposed by the board of
directors of such Person.
6 Payment of Obligations, Etc. The Borrower shall pay and
discharge, and cause each of its Subsidiaries to pay and discharge,
before the same shall become delinquent, all lawful claims and all
taxes, assessments and governmental charges or levies unless the same
are being contested in good faith by appropriate proceedings and
adequate reserves therefor have been established on the books of the
Borrower or one of its Subsidiaries in accordance with GAAP, provided
all such non-payments, individually or in the aggregate, have no
reasonable likelihood of having a Material Adverse Effect.
7 Insurance. The Borrower shall maintain, and cause each of
its Subsidiaries to maintain, with financially sound and reputable
independent insurers, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured
against by Persons engaged in the same or similar business, of such
types and in such amounts as are customarily carried under similar
circumstances by such other Persons.
8 Preservation of Corporate Existence, Etc. The Borrower
shall preserve and maintain, and cause each of its Subsidiaries to
preserve and maintain, its corporate existence, rights (charter and
statutory) and franchises, except as permitted under Sections 7.05 and
7.07.
9 Access. The Borrower shall permit, and cause each of its
Subsidiaries to permit, representatives of the Agent or any Bank to
examine and make copies of and abstracts from the records and books of
account of, and visit the properties of, the Borrower and any of its
Subsidiaries, and to discuss the affairs, finances and accounts of the
Borrower and any of its Subsidiaries with any of their directors,
officers and independent public accountants and authorize those
accountants to disclose to such Person any and all financial
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statements and other information of any kind, including copies of any
management letter or the substance of any oral information that such
accountants may have with respect to the business, financial and other
affairs of the Borrower or any of its Subsidiaries, all at the expense
of the Borrower and at such times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to
the Borrower; provided, however, that when an Event of Default exists,
the Agent or any Bank may visit and inspect, at the expense of the
Borrower, its records and properties at any time during business hours
and without advance notice.
10 Keeping of Books. The Borrower shall maintain, and cause
each of its Subsidiaries to maintain, proper books of record and
account, in which full and correct entries shall be made of all
financial transactions and matters involving the assets and business
of the Borrower and each of its Subsidiaries in accordance with GAAP.
11 Maintenance of Properties. The Borrower shall maintain
and preserve, and cause each of its Subsidiaries to maintain and
preserve, all of its properties in good repair, working order and
condition, and from time to time make or cause to be made all
necessary and proper repairs, renewals, replacements and improvements
so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however,
that nothing in this Section 6.08 shall prevent the Borrower or any of
its Subsidiaries from discontinuing the operation and the maintenance
of any of its properties if such discontinuance is, in the opinion of
the Borrower, desirable in the conduct of its business and has no
reasonable likelihood of having a Material Adverse Effect.
12 Financial Statements. The Borrower shall deliver to each
Bank with a copy to the Agent, in form and details satisfactory to the
Banks and the Agent:
(a) as soon as available, but not later than 45 days after the
end of each of the first three quarters of each fiscal year of the
Borrower, a copy of the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such quarter and the
related consolidated statements of income, shareholders' equity and
cash flows for such quarter and for the period commencing at the end
of the previous fiscal year and ending on the last day of such
quarter, which statements shall be certified by the Chief Financial
Officer of the Borrower as being complete and correct and fairly
presenting, in accordance with GAAP, the financial position and
results of operation of the Borrower and its Subsidiaries;
(b) as soon as available, but not later than 90 days after the
end of each fiscal year of the Borrower, a copy of the audited
consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such year and the related consolidated statements of
income, shareholders' equity and cash flows for the period commencing
at the end of the previous fiscal year and ending with the end of such
fiscal year, which statements shall be certified without qualification
as to the scope of the audit by a nationally recognized independent
public accounting firm and be accompanied by (i) a certificate of such
accounting firm stating that such accounting firm has obtained no
knowledge that a Default or an Event of Default has occurred and is
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continuing, or if such accounting firm has obtained such knowledge
that a Default or an Event of Default has occurred and is continuing,
a statement as to the nature thereof and (ii) copies of any letters to
the management of the Borrower from such accounting firm; and
(c) at the same time it furnishes each set of financial
statements pursuant to paragraph (a) or (b) above, a certificate of
the Chief Financial Officer of the Borrower (i) to the effect that no
Default or Event of Default has occurred and is continuing (or, if any
Default or Event of Default has occurred and is continuing, describing
the same in reasonable detail and the action which the Borrower
proposes to take with respect thereto) and (ii) a compliance
certificate, in substantially the form of Exhibit 6.09, setting forth
in reasonable detail the computations necessary to determine whether
the Borrower was in compliance with the financial covenant set forth
in Section 7.15, in each case reconciling any differences between the
numbers used in such calculations and those used in the preparation of
such financial statements.
.17 Reporting Requirements. The Borrower shall furnish to the
Agent (and the Agent shall promptly furnish to the Banks):
(a) promptly after the commencement thereof, notice of all
actions, suits and proceedings before any court or other Governmental
Authority affecting the Borrower or any of its Subsidiaries which,
individually or in the aggregate, has any reasonable likelihood of
having a Material Adverse Effect;
(b) promptly but not later than three Business Days after the
Borrower becomes aware of the existence of (i) any Default or Event of
Default, (ii) any breach or non-performance of, or any default under,
any Contractual Obligation to which the Borrower or any of its
Subsidiaries is a party which has any reasonable likelihood of having
a Material Adverse Effect, or (iii) any Material Adverse Effect or any
event or other development which has a reasonable likelihood of having
a Material Adverse Effect, notice by telephone or facsimile specifying
the nature of such Default, Event of Default, breach, non-performance,
default, Material Adverse Effect, event or development, including the
anticipated effect thereof;
(c) promptly after the sending or filing thereof, copies of
all reports which the Borrower or any of its Subsidiaries sends to its
security holders generally, and copies of all reports and registration
statements which the Borrower or any of its Subsidiaries files with
the Securities and Exchange Commission or any national securities
exchange;
(d) promptly after the creation or acquisition thereof, the
name and jurisdiction of incorporation of each new Subsidiary of the
Borrower;
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(e) promptly, but not later than five Business Days after the
Borrower becomes aware of any change by Moody's or S&P in its Debt
Rating, notice by telephone or facsimile of such change; and
(f) such other information respecting the business, prospects,
properties, operations or the condition, financial or otherwise, of
the Borrower or any of its Subsidiaries as any Bank through the Agent
may from time to time reasonably request.
.18 Notices Regarding ERISA. Without limiting the generality
of the notice provisions contained in Section 6.10, the Borrower shall
furnish to the Agent:
(a) promptly and in any event (i) within 30 days after the
Borrower or any member of its Controlled Group knows or has reason to
know that any ERISA Event described in clause (a) of the definition of
ERISA Event or any event described in Section 4063(a) of ERISA with
respect to any Plan, and (ii) within ten days after the Borrower or
any member of its Controlled Group knows or has reason to know that
any other ERISA Event with respect to any Plan has occurred or a
request for a minimum funding waiver under Section 412 of the Code
with respect to any Plan has been made, a statement of the Chief
Financial Officer of the Borrower describing such ERISA Event and the
action, if any, which the Borrower or such member of its Controlled
Group proposes to take with respect thereto together with a copy of
the notice of such ERISA Event or other event, if required by the
applicable regulations under ERISA, given to the PBGC;
(b) promptly and in any event within five Business Days after
receipt thereof by the Borrower or any member of its Controlled Group
from the PBGC, copies of each notice received by the Borrower or any
such member of its Controlled Group of the PBGC's intention to
terminate any Plan or to have a trustee appointed to administer any
Plan;
(c) promptly and in any event within ten Business Days after
receipt thereof, a copy of any correspondence the Borrower or any
member of its Controlled Group receives from the Plan Sponsor (as
defined by Section 4001(a)(10) of ERISA) of any Multiemployer Plan
concerning potential withdrawal liability of the Borrower or any
member of its Controlled Group pursuant to Section 4219 or 4202 of
ERISA, and a statement from the Chief Financial Officer of the
Borrower or such member of its Controlled Group setting forth details
as to the events giving rise to such potential withdrawal liability
and the action which the Borrower or such member of its Controlled
Group proposes to take with respect thereto;
(d) notification within 30 days of any material increase in
the benefits under any existing Plan which is not a Multiemployer
Plan, or the establishment of any new Plans, or the commencement of
contributions to any Plan to which the Borrower or any member of its
Controlled Group was not previously contributing;
(e) notification within five Business Days after the Borrower
or any member of its Controlled Group knows or has reason to know that
the Borrower or any such member of its Controlled Group has or intends
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to file a notice of intent to terminate any Plan under a distress
termination within the meaning of Section 4041(c) of ERISA and a copy
of such notice; and
(f) promptly after receipt of written notice of commencement
thereof, notice of any action, suit and proceeding before any
Governmental Authority affecting the Borrower or any member of its
Controlled Group with respect to any Plan, except those which, in the
aggregate, if adversely determined, could not have a Material Adverse
Effect.
.19 Employee Plans.
(a) With respect to Plans other than a Multiemployer Plan, for
each Plan intended to be qualified under Section 401(a) of the Code
which is hereafter adopted or maintained by the Borrower or by any
member of its Controlled Group, the Borrower shall or shall cause any
such member of its Controlled Group to (i) seek and receive
determination letters from the IRS to the effect that such Plan is
qualified within the meaning of Section 401(a) of the Code; (ii) from
and after the adoption of any such Plan, cause such Plan to be
qualified within the meaning of Section 401(a) of the Code and to be
administered in all material respects in accordance with the
requirements of ERISA and Section 401(a) of the Code; (iii) make all
required contributions by the due date (including permissible
extensions) under Section 412 of the Code and Section 302 of ERISA;
and (iv) not take any action which could reasonably be expected to
cause such Plan not to be qualified within the meaning of Section
401(a) of the Code or not to be administered in all material respects
in accordance with the requirements of ERISA and Section 401(a) of the
Code.
(b) With respect to each Multiemployer Plan, the Borrower and
each member of its Controlled Group will make any contributions
required by such Multiemployer Plan.
.20 Environmental Compliance; Notice. The Borrower shall, and
cause each of its Subsidiaries to:
(a) use and operate all of its facilities and properties in
substantial compliance with all Environmental Laws, keep all necessary
permits, approvals, certificates, license and other authorizations
relating to environmental matters in effect and remain in substantial
compliance therewith, and handle all Hazardous Materials in
substantial compliance with all applicable Environmental Laws;
(b) promptly upon receipt of all written claims, complaints,
notices or inquiries relating to the condition of its facilities and
properties or compliance with Environmental Laws, evaluate such
claims, complaints, notices and inquiries and forward copies of (i)
all such claims, complaints, notices and inquiries which individually
have any reasonable likelihood of having a Material Adverse Effect and
(ii) all such claims, complaints, notices and inquiries, arising from
a single occurrence which together have any reasonable likelihood of
having a Material Adverse Effect, and endeavor to promptly resolve all
such actions and proceedings relating to compliance with Environmental
Laws; and
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(c) provide such information and certifications which the
Agent may reasonably request from time to time to evidence compliance
with this Section 6.13.
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that so as long as any
Bank shall have any Commitment hereunder or any Loan or other
Obligation shall remain unpaid or unsatisfied, unless the Majority
Banks shall waive compliance in writing:
2 Limitations on Liens. The Borrower shall not create,
incur, assume or suffer to exist, or permit any of its Subsidiaries to
create, incur, assume or suffer to exist, any Lien upon or with
respect to any of its properties, whether now owned or hereafter
acquired, other than the following ("Permitted Liens"):
(a) any Lien existing on the property of the Borrower or any
of its Subsidiaries on the Restatement Date and set forth in Schedule
7.01 and any extension, renewal and replacement of any such Lien;
provided any such extension, renewal or replacement Lien is limited to
the property or assets covered by the Lien extended, renewed or
replaced and does not secure any Indebtedness in addition to that
secured immediately prior to such extension, renewal and replacement;
(b) any Lien created pursuant to any Loan Document;
(c) Liens imposed by law, such as materialmen's, mechanics',
warehousemen's, carriers', lessors' or vendors' Liens incurred by the
Borrower or any of its Subsidiaries in the ordinary course of business
which secure its payment obligations to any Person, provided (i)
neither the Borrower nor any of its Subsidiaries is in default with
respect to any payment obligation to such Person or is in good faith
and by appropriate proceedings diligently contesting such obligation
for which adequate reserves shall have been set aside on its books and
(ii) such Liens have no reasonable likelihood of having, individually
or in the aggregate, a Material Adverse Effect;
(d) Liens for taxes, assessments or governmental charges or
levies either not yet due and payable or to the extent that
non-payment thereof shall be permitted by Section 6.03;
(e) Liens on the property of the Borrower or any of its
Subsidiaries incurred, or pledges and deposits made, in the ordinary
course of business in connection with worker's compensation,
unemployment insurance, old-age pensions and other social security
benefits, other than in respect of employee plans subject to ERISA;
(f) Liens on the property of the Borrower or any of its
Subsidiaries securing (i) the performance of bids, tenders, statutory
obligations, leases and contracts (other than for the repayment of
borrowed money), (ii) obligations on surety and appeal bonds not
exceeding in the aggregate $5,000,000 and (iii) other obligations of
like nature incurred as an incident to and in the ordinary course of
business, provided all such Liens in the aggregate have no reasonable
likelihood (even if enforced) of having a Material Adverse Effect;
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(g) zoning restrictions, easements, licenses, reservations,
restrictions on the use of real property or minor irregularities
incident thereto which do not impair the value of any parcel of
property material to the operation of the business of the Borrower and
its Subsidiaries taken as a whole or the value of such property for
the purpose of such business;
(h) (i) purchase money liens or purchase money security
interests (including in connection with capital leases) upon or in any
property acquired or held by the Borrower or any of its Subsidiaries
in the ordinary course of business to secure the purchase price of
such property or to secure Indebtedness incurred solely for the
purpose of financing the acquisition of such property and Liens
existing on such property at the time of its acquisition (other than
any such Lien created in contemplation of such acquisition) which
Liens do not extend to any other property and do not secure
Indebtedness exceeding the purchase price of such property;
(i) Liens (including in connection with capital leases)
securing Indebtedness of the Borrower or any of its Subsidiaries
incurred to finance all or some of the cost of construction of
property (or to refinance Indebtedness so incurred upon completion of
such construction) which Liens do not extend to any other property
except to the unimproved real property upon which such construction
will occur; provided the Indebtedness secured by such Liens is not
incurred more than 90 days after the later of the completion of
construction or the commencement of full operation of such property;
and
(ii) Liens on property in favor of any Governmental Authority
to secure partial, progress, advance or other payments, or performance
of any other obligations, pursuant to any contract or statute or to
secure any Indebtedness of the Borrower or any of its Subsidiaries
incurred for the purpose of financing all or any part of the purchase
price or the cost of construction of property subject to Liens
(including in connection with capital leases) securing Indebtedness of
the pollution control or industrial or other revenue bond type and
which Liens do not extend to any other property;
provided, however, that the aggregate amount of Indebtedness
secured by all Liens referred to in clauses (i), (ii) and (iii)
of this paragraph (h) at any time outstanding, together with the
Indebtedness secured by Liens permitted pursuant to paragraphs
(i) and (l) below (and any extensions, renewals and refinancings
of such Indebtedness) shall not, subject to the second proviso of
paragraph (i) below, at any time exceed the Permitted Lien
Basket;
(i) Liens on assets of any corporation existing at the time
such corporation becomes a Subsidiary of the Borrower or merges into
or consolidates with the Borrower or any of its Subsidiaries, if such
Liens (A) do not extend to any other property, (B) do not secure
Indebtedness exceeding the fair market value of such property at the
time such corporation becomes a Subsidiary of the Borrower or at the
time of such merger or consolidation, and (C) were not created in
contemplation of such corporation becoming a Subsidiary of the
Borrower or of such merger or consolidation; provided, however, that
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the aggregate amount of Indebtedness secured by Liens referred to in
this paragraph (i), together with the Indebtedness secured by Liens
permitted pursuant to paragraph (h) above and paragraph (l) below (and
any extensions, renewals and refinancings of such Indebtedness) shall
not at any time exceed the Permitted Lien Basket; provided, further,
however, that notwithstanding the foregoing limitation, the Borrower
may incur, and permit its Subsidiaries to incur, Indebtedness secured
by Liens referred to in this paragraph (i) which, when aggregated with
the Indebtedness secured by Liens permitted pursuant to paragraph (h)
above and paragraph (l) below, exceed the Permitted Lien Basket if,
and only if, (x) such Indebtedness remains outstanding for a period of
less than six months from the date on which such Indebtedness first
exceeded the Permitted Lien Basket or (y) such Liens are released
within six months;
(j) the filing of financing statements in respect of accounts
sold by the Borrower and its Subsidiaries pursuant to a receivables
purchase transaction by the purchaser or purchasers from the Borrower
and its Subsidiaries of such accounts;
(k) judgment Liens created by or resulting from any litigation
or legal proceeding if released or bonded within 60 days of the date
of creation thereof (or such earlier date as may be required by
Section 8.01(h)), unless such litigation shall have had a Material
Adverse Effect; and
(l) Liens securing other Indebtedness of the Borrower or any
of its Subsidiaries not expressly permitted by paragraphs (a) through
(k); provided, however, that the aggregate amount of Indebtedness
secured by Liens permitted pursuant to paragraphs (h) and (i) above
and pursuant to this paragraph (l) (and any extensions, renewals and
refinancings of such Indebtedness) shall not, subject to the second
proviso of paragraph (i) above, at any time exceed the Permitted Lien
Basket.
3 Limitation on Indebtedness. The Borrower shall not create,
incur, assume or suffer to exist, or permit any of its Subsidiaries to
create, incur, assume or suffer to exist, any Indebtedness except:
(a) the Loans and any other Indebtedness under this Agreement
or any other Loan Document;
(b) Indebtedness existing on the Restatement Date and set
forth in Schedule 7.02, and any extension, renewal, refunding and
refinancing thereof, provided that after giving effect to such
extension, renewal, refunding or refinancing, (A) the principal amount
thereof is not increased, (B) neither the tenor nor the remaining
average life thereof is reduced and (C) the interest rate thereon is
not increased; provided, however, that the industrial revenue bonds
identified by an asterisk in Schedule 7.02 may be refinanced at an
interest rate higher than the rate in effect immediately prior to such
refinancing if such rate is not in excess of any rate of interest then
payable in respect of the Loans (without taking into account any
interest payable pursuant to Section 2.10);
(c) Indebtedness of the Borrower to any of its wholly-owned
Subsidiaries, of any Subsidiary of the Borrower to the Borrower or of
any Subsidiary of the Borrower to another Subsidiary of the Borrower;
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(d) surety bonds and appeal bonds required in the ordinary
course of business or in connection with the enforcement of rights or
claims of the Borrower or its Subsidiaries or in connection with
judgments that do not result in a Default or an Event of Default;
(e) trade debt (including Indebtedness for the purchase of
farm products from contract growers and other similar suppliers but
excluding Indebtedness for Borrowed Money) incurred by the Borrower or
any of its Subsidiaries in the ordinary course of business in a manner
and to an extent consistent with their past practices and necessary or
desirable for the prudent operation of its businesses;
(f) Indebtedness secured by Liens permitted pursuant to
Section 7.01 subject to the limitations contained therein;
(g) Indebtedness incurred in connection with the issuance of
commercial paper; and
(h) other present and future unsecured Indebtedness provided
at the time of, and immediately after giving effect to, the incurrence
of such Indebtedness, no condition or event shall exist which
constitutes an Event of Default.
4 Lease Obligations. The Borrower shall not create, incur,
assume or suffer to exist, or permit any of its Subsidiaries to
create, incur, assume or suffer to exist, any obligation for the
payment of rent for any property under lease or agreement to lease
having a term of one year or more, except
(a) leases of the Borrower and its Subsidiaries in existence
on the Restatement Date and any renewal or extension thereof;
(b) operating leases in the ordinary course of business; and
(c) subject to the limitations set forth in Section 7.01(h)
capital leases entered into by the Borrower or any of its Subsidiaries
after the Restatement Date in connection with sale-leaseback
transactions; provided (i) immediately prior to giving effect to such
lease, the property subject to such lease was sold by the Borrower or
any such Subsidiary to the lessor pursuant to a transaction permitted
under Section 7.07 and (ii) no Event of Default exists or would occur
as a result of such sale and subsequent lease.
5 Restricted Payments. The Borrower shall not:
(a) declare or make, or permit any of its Subsidiaries to
declare or make, any dividend payment or other distribution of assets,
properties, cash, rights, obligations or securities on account of its
Stock other than (i) dividends paid by any wholly-owned Subsidiary of
the Borrower to the Borrower or any other wholly-owned Subsidiary of
the Borrower; (ii) distributions of shares of common stock of the
Borrower to its management as executive compensation and in connection
with management incentive plans; (iii) dividends or distributions
payable solely in additional common Stock of the Borrower; and (iv)
other dividends to the shareholders of the Borrower, provided at the
time of, and immediately after giving effect to, the payment of such
dividends pursuant to this paragraph (a)(iv), no condition or event
shall exist which constitutes an Event of Default; or
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(b) purchase, redeem, or otherwise acquire for value or make
any payment in respect of any of its Stock now or hereafter
outstanding (or permit any of its Subsidiaries to do so) except (i)
purchases in the open market to fund the Borrower's stock option
plans, employee stock purchase plans, 401(k) plans and other similar
plans consistent with the past practices of the Borrower; (ii) the
redemption or purchase by any wholly-owned Subsidiary of the Borrower
of any of its Stock owned by another wholly-owned Subsidiary of the
Borrower and (iii) the purchase, redemption and other acquisition of
any of its or such Subsidiary's Stock, provided at the time of, and
immediately after giving effect to, such purchase, redemption or other
acquisition pursuant to this paragraph (b)(iii), no condition or event
shall exist which constitutes an Event of Default.
6 Mergers, Etc. The Borrower shall not merge or consolidate
with or into, or convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter
acquired) to any Person, or, except as permitted pursuant to Section
7.06 or Section 7.09, acquire all or substantially all of the Stock of
any Person, or acquire all or substantially all of the assets of any
Person (other than live inventory) or enter into any joint venture or
partnership with, any Person, or permit any of its Subsidiaries to do
so; provided, however, that:
(a) the Borrower may merge with a wholly-owned Subsidiary of
the Borrower so long as (i) the Borrower is the surviving corporation
and (ii) at the time of, and immediately after giving effect to, such
merger, no condition or event shall exist which constitutes an Event
of Default;
(b) any wholly-owned direct or indirect Subsidiary of the
Borrower may merge with or into any other wholly-owned direct or
indirect Subsidiary of the Borrower or acquire Stock of any other
wholly-owned direct or indirect Subsidiary of the Borrower;
(c) the Borrower or any Subsidiary of the Borrower may acquire
all or substantially all of the Stock or all or substantially all of
the assets of any Person, provided at the time of, and immediately
after giving effect to such acquisition, no condition or event shall
exist which constitutes an Event of Default; and
(d) any Subsidiary of the Borrower may merge with any other
corporation permitted to be acquired pursuant to paragraph (c) above,
provided (i) at the time of, and immediately after giving effect to,
such merger, no condition or event shall exist which constitutes an
Event of Default and (ii) and after such merger, the surviving
corporation is a Subsidiary of the Borrower.
7 Investments in Other Persons. The Borrower shall not make, or
permit any of its Subsidiaries to make, any loan or advance to any
Person (other than accounts receivable created in the ordinary course
of business); or, except as permitted under Section 7.04 or 7.05,
purchase or otherwise acquire, or permit any of its Subsidiaries to
purchase or otherwise acquire, any Stock or other equity interest or
Indebtedness of any Person, or make, or permit any of its Subsidiaries
to make, any capital contribution to, or otherwise invest in, any
Person, except:
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(a) Permitted Investments;
(b) loans or advances made by the Borrower or any of its
Subsidiaries to (i) employees of the Borrower or any of such
Subsidiaries in the ordinary course of business in a manner consistent
with past practices and (ii) joint ventures and partnerships in which
the Borrower is a partner, provided at the time of, and immediately
after giving effect to, such loans or advances, no condition or event
shall exist which constitutes an Event of Default;
(c) loans or advances or other credit support, including the
procurement of letters of credit for its account, made by the Borrower
or any of its Subsidiaries (in addition to those permitted under
paragraph (b) above) to any Person; provided, however, that the
aggregate amount of all investments pursuant to this paragraph (c)
shall not at any time exceed 15% of the consolidated Net Worth of the
Borrower;
(d) investments in Stock or other joint ventures and
partnerships (including through mergers and consolidations), provided
at the time of, and immediately after giving effect to, such
investments, no condition or event shall exist which constitutes an
Event of Default;
(e) the organization or acquisition by the Borrower or any of
its wholly-owned Subsidiaries of one or more wholly-owned
Subsidiaries;
(f) the acquisition by the Borrower or any of its wholly-owned
Subsidiaries of Stock permitted to be issued pursuant to Section 7.09;
and
(g) intercompany Indebtedness permitted pursuant to Section
7.02(d).
8 Assets. The Borrower shall not sell, assign, transfer or
otherwise dispose of any of its assets, or permit any of its
Subsidiaries to sell, assign, transfer or otherwise dispose of any of
its assets, except:
(a) the sale or disposition of inventory and farm products in
the ordinary course of business;
(b) the sale or disposition in the ordinary course of business
of any assets which have become obsolete or surplus to the business of
the Borrower or any of its Subsidiaries, or has no remaining useful
life, in each case as reasonably determined in good faith by the
Borrower or such Subsidiary, as the case may be;
(c) the periodic sales to third parties of live inventory and
related products and services under grow out contracts;
(d) Permitted Dispositions;
(e) the sale or disposition of Permitted Investments; and
(f) the sale of accounts or other receivables for not less
than the fair value thereof by the Borrower and its Subsidiaries,
without recourse, in connection with a receivables purchase
transaction.
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9 Change in Nature of Business. The Borrower shall not:
(a) engage in any business other than the production,
marketing and distribution of food products and any related food or
agricultural products, processes or business; or
(b) permit any of its Subsidiaries to make any material change
in the nature of its business as carried on at the date hereof except
as permitted under Section 7.05 or enter into any new business.
10 Capital Structure. The Borrower shall not:
(a) make, or, except as permitted by Section 7.05, permit any
of its Subsidiaries to make, any changes in its capital structure
(including in the terms of its outstanding Stock), amend their
certificate of incorporation or by-laws, or make any changes in any of
its business objectives, purposes or operations if such change has a
reasonable likelihood of having a Material Adverse Effect; or
(b) permit any of its Subsidiaries to issue any Stock (other
than directors' qualifying shares) other than to the Borrower or any
wholly-owned Subsidiary of the Borrower, except if (i) after giving
effect to such issuance, such Subsidiary is still a Subsidiary of the
Borrower; (ii) such issuance has no reasonable likelihood of having a
Material Adverse Effect; and (iii) at the time of, and immediately
after giving effect to such issuance, there shall exist no condition
or event which constitutes an Event of Default.
.21 Transactions with Affiliates, Etc. The Borrower shall not:
(a) enter into or be a party to, or permit any of its
Subsidiaries to enter into or be a party to, any transaction with any
Affiliate of the Borrower or any such Subsidiary except (i) as
otherwise expressly permitted herein or (ii) in the ordinary course of
business, to the extent consistent with past practices, so long as any
such transaction individually and in the aggregate with other such
transactions has no reasonable likelihood of having a Material Adverse
Effect;
(b) enter into, or permit any of its Subsidiaries to enter
into, any contract or other agreement or arrangement for employment of
an executive officer other than in the ordinary course of business, or
enter into, or permit any of its Subsidiaries to enter into, any
contract or other obligation for the payment of management fees by the
Borrower or any of its Subsidiaries, except for the intercompany
allocation of general administrative costs and other expenses
consistent with past practices; or
(c) enter into, or permit any of its Subsidiaries to enter
into, any agreement that prohibits, limits or restricts any repayment
of loans or advances or other distributions to the Borrower by any of
its respective Subsidiaries, or that restricts any such Subsidiary's
ability to declare or make any dividend payment or other distribution
on account of any shares of any class of its capital stock or on its
ability to acquire or make a payment in respect thereof.
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.22 Accounting Changes. The Borrower shall not make, or
permit any of its Subsidiaries to make, any significant change in
accounting treatment and reporting practices except as required by
GAAP, the IRS or the Securities and Exchange Commission; provided,
however, that if any such changes are so required to be made within a
certain period of time only, such changes may, in the discretion of
the Borrower, be made at any time during such period.
.23 Margin Regulations. The Borrower shall not use the
proceeds of any Loan in violation of Regulation G, T, U or X of the
Board of Governors of the Federal Reserve System.
.24 Compliance with ERISA. The Borrower shall not, directly
or indirectly, permit any member of the Controlled Group of the
Borrower to, directly or indirectly:
(a) terminate any Plan so as to result in any material
liability (in the opinion of the Majority Banks exercised reasonably)
to the Borrower or any member of its Controlled Group;
(b) permit to exist any ERISA Event, or any other event or
condition which presents the risk of a material liability (in the
opinion of the Majority Banks exercised reasonably) of the Borrower or
any member of its Controlled Group;
(c) make a complete or partial withdrawal (within the meaning
of Section 4201 of ERISA) from any Multiemployer Plan so as to result
in any material liability (in the opinion of the Majority Banks
exercised reasonably) to the Borrower or any member of its Controlled
Group;
(d) enter into any new Plan or modify any existing Plan so as
to increase its obligations thereunder except in the ordinary course
of business consistent with past practice which has any reasonable
likelihood of resulting in material liability to the Borrower or any
member of its Controlled Group; or
(e) permit the present value of all benefit liabilities, as
defined in Title IV of ERISA, under each Plan of the Borrower or any
member of its Controlled Group (using each Plan's actuarial
assumptions upon termination of such Plan) to materially (in the
opinion of the Majority Banks exercised reasonably) exceed the fair
market value of Plan assets allocable to such benefits all determined
as of the most recent valuation date for each such Plan.
.25 Speculative Transactions The Borrower shall not engage or
permit any of its Subsidiaries to engage in any transaction involving
commodity options or futures contracts other than in the ordinary
course of business consistent with past transactions.
.26 Debt Ratio. The Borrower shall not permit at any time the
Debt Ratio to be greater than .65 to 1.
EVENTS OF DEFAULT
1 Events of Default. The term "Event of Default" shall mean
any of the events set forth in this Section 8.01.
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(a) Non-Payment. The Borrower shall (i) fail to pay when and
as required to be paid herein, any amount of principal of any Loan or
any amount of interest on any Bid Loan; or (ii) fail to pay within
three Business Days after the same shall become due and payable, any
other interest or any fee or other amount payable hereunder or under
any other Loan Document or any other Obligation;
(b) Representations and Warranties. Any representation or
warranty made by the Borrower in this Agreement or in any other Loan
Document, or which is contained in any certificate, document or
financial or other statement delivered at any time under or in
connection with this Agreement or any other Loan Document shall prove
to have been incorrect or untrue in any material respect when made or
deemed made;
(c) Specific Defaults. The Borrower shall fail to perform or
observe any term, covenant or agreement contained in Article VII or
Section 6.02, 6.04 (but only to the extent such failure could have a
Material Adverse Effect), 6.05, 6.06, 6.10(b) or 6.10(e);
(d) Other Defaults. The Borrower shall fail to perform or
observe any other term or covenant contained in this Agreement
(including Section 6.04 to the extent not covered by paragraph (c)
above) or any other Loan Document, and such Default shall continue
unremedied for a period of 15 days after the date upon which written
notice thereof shall have been given to the Borrower by the Agent;
(e) Default under Other Agreements. Any default shall occur
under any Indebtedness of the Borrower (other than under this
Agreement) or any of its Subsidiaries (other than Trasgo, S.A. de
C.V., a Mexican Subsidiary of the Borrower) having an aggregate
outstanding principal amount of $10,000,000 or more or under one or
more Interest Rate Contracts of the Borrower or any of its
Subsidiaries resulting in aggregate net obligations of $10,000,000 or
more and such default shall:
(i) consist of the failure to pay any Indebtedness when due
(whether at scheduled maturity, by required prepayment, acceleration,
demand or otherwise) after giving effect to any applicable grace or
notice period; or
(ii) result in, or continue unremedied for a period of time
sufficient to permit, the acceleration of such Indebtedness or the
early termination of such Interest Rate Contract;
(f) Bankruptcy or Insolvency. The Borrower or any of its
Subsidiaries shall:
(i) cease to be Solvent or generally fail to pay, or admit in
writing its inability to pay, its debts as they become due;
(ii) commence an Insolvency Proceeding;
(iii) voluntarily cease to conduct its business in the ordinary
course; or
(iv) take any action to effectuate or authorize any of the
foregoing;
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(g) Involuntary Proceedings.
(i) An involuntary Insolvency Proceeding shall be commenced
against the Borrower or any of its Subsidiaries or any writ, judgment,
warrant of attachment, execution or similar process shall be issued or
levied against a substantial part of the Borrower's, or any of its
Subsidiaries' properties, and any such proceeding or petition shall
not be dismissed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated or fully
bonded within 60 days after commencement, filing or levy;
(ii) the Borrower or any of its Subsidiaries shall admit
in writing the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under
non-United States law) against the Borrower or such Subsidiary is
ordered in any Insolvency Proceeding; or
(iii) the Borrower or any of its Subsidiaries shall acquiesce in
the appointment of a receiver, trustee, custodian, conservator,
liquidator, mortgagee in possession (or agent therefor) or other
similar Person for itself or a substantial portion of its property or
business;
(h) Monetary Judgments. One or more judgments, orders or
decrees for the payment of money exceeding in the aggregate
$10,000,000 (not fully covered by insurance) shall be rendered against
the Borrower or any of its Subsidiaries and either (i) enforcement
proceedings shall have been initiated by any creditor upon such
judgment or order or (ii) such judgment or order shall continue
unsatisfied, unvacated or unstayed for a period of 20 days;
(i) Non-Monetary Judgments. Any non-monetary judgment, order
or decree shall be rendered against the Borrower or any of its
Subsidiaries which does or has a reasonable likelihood of having a
Material Adverse Effect and either (A) enforcement proceedings shall
have been initiated by any Person upon such judgment or order or (B)
there shall be any period of ten consecutive days during which a stay
of enforcement of such judgment, order or decree, by reason of a
pending appeal or otherwise, shall not be in effect;
(j) ERISA. With respect to any Plan:
(i) the Borrower, any member of its Controlled Group or any
other party-in-interest or disqualified Person shall engage in
transactions which in the aggregate have a reasonable likelihood of
resulting in a direct or indirect liability to the Borrower or any
member of its Controlled Group in excess of $10,000,000 under Section
409 or 502 of ERISA or Section 4975 of the Code;
(ii) the Borrower or any member of its Controlled Group shall
incur any accumulated funding deficiency, as defined in Section 412 of
the Code, in the aggregate in excess of $10,000,000, or request
a funding waiver from the IRS for contributions in the aggregate in
excess of $10,000,000;
(iii) the Borrower or any member of its Controlled Group shall
incur any withdrawal liability in the aggregate in excess of
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$10,000,000 as a result of a complete or partial withdrawal from a
Multiemployer Plan within the meaning of Section 4203 or 4205 of
ERISA;
(iv) the Borrower or any member of its Controlled Group shall
fail to make a required contribution by the due date (including any
permissible extensions) under Section 412 of the Code or Section 302
of ERISA which would result in the imposition of a Lien under Section
412 of the Code or Section 302 of ERISA;
(v) the Borrower, any member of its Controlled Group or any
Plan sponsor shall notify the PBGC of an intent to terminate in a
distressed termination, or the PBGC shall institute proceedings to
terminate, a Plan;
(vi) a Reportable Event shall occur with respect to a Plan, and
within 15 days after the reporting of such Reportable Event to the
Majority Banks, the Majority Banks shall have notified the Borrower in
writing that (A) they have made a determination that, on the basis of
such Reportable Event, there are reasonable grounds for the
termination of such Plan by the PBGC or for the appointment by the
appropriate United States District Court of a trustee to administer
such Plan and (B) as a result thereof a Default or an Event of Default
shall occur hereunder;
(vii) a trustee shall be appointed by a court of competent
jurisdiction to administer any Plan or the assets thereof;
(viii) the benefits of any Plan shall be increased (other than in
the ordinary course of business consistent with past practice), or the
Borrower or any member of its Controlled Group shall begin to
maintain, or begin to contribute to, any Plan, without the prior
written consent of the Majority Banks; or
(ix) any ERISA Event with respect to a Plan shall have
occurred, and 30 days thereafter (A) such ERISA Event shall not have
been corrected and (B) the then present value of such Plan's benefit
liabilities, as defined in Title IV of ERISA, shall exceed the then
current value of assets accumulated in such Plan;
provided, however, that the events listed in clauses (v)-(ix) of
this paragraph (j) shall constitute Events of Default only if, as
of the date thereof or any subsequent date, the maximum amount of
liability the Borrower or any member of its Controlled Group
could incur in the aggregate under Section 4062, 4063, 4064, 4219
or 4243 of ERISA or any other provision of law with respect to
all such Plans, computed by the actuary of the Plan taking into
account any applicable rules and regulations of the PBGC at such
time, and based on the actuarial assumptions used by the Plan,
resulting from or otherwise associated with such event exceeds
$10,000,000; or
(k) Change in Control. Mr. Don Tyson, the Tyson Limited
Partnership and "members of the same family" of Mr. Don Tyson as
defined in Section 447(e) of the Code shall cease to have at least 51%
of the total combined voting power of the outstanding Stock of the
Borrower.
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2 Remedies. If any Event of Default shall have occurred and
be continuing, the Agent shall at the request of, or may with the
consent of, the Majority Banks:
(a) declare the Commitment of each Bank to be terminated,
whereupon such Commitment shall forthwith be terminated; and/or
(b) declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon and all other
Obligations payable hereunder or under any other Loan Document to be
immediately due and payable, whereupon the Loans, all such interest
and all such Obligations shall become and be forthwith due and payable
without presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by the Borrower;
provided, however, that upon the occurrence of any event specified in
Section 8.01(f) or (g) with respect to the Borrower, the Commitment of
each Bank to make Loans shall automatically terminate and the unpaid
principal amount of all outstanding Loans and all interest accrued
thereon and all other Obligations shall automatically become due and
payable without further action of the Agent or any Bank. If any Event
of Default shall occur and be continuing under Section 8.01(a) due to
the Borrower's failure to pay any amount of principal on or interest
of any Bid Loan, the Bank having made such Bid Loan may send a written
request to the Agent to obtain approval of the Majority Banks to
terminate the Commitments and, if such approval is not obtained within
ten Business Days after the date such request is received, the
affected Bank (or assignee) may commence enforcement of such default
by any and all legal means.
3 Rights Not Exclusive. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies provided
by law or in equity, or under any other instrument, document or
agreement now existing or hereafter arising.
THE AGENT
4 Appointment. Each Bank hereby irrevocably appoints,
designates and authorizes the Agent to take such action on its behalf
under the provisions of this Agreement or any other Loan Document and
to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement or in any other Loan Document, the Agent shall not have
any duties or responsibilities except those expressly set forth herein
or any fiduciary relationship with any Bank, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Loan Document or otherwise
exist against the Agent.
5 Delegation of Duties. The Agent may execute any of its
duties under this Agreement and any other Loan Document by or through
employees, agents or attorneys-in-fact and shall be entitled to advice
of counsel concerning all matters pertaining to such duties. The
Agent shall not be responsible for the negligence or misconduct of any
agent or attorney-in-fact that it selects with reasonable care.
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6 Liability of Agent. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (a) liable for any action taken or omitted to be
taken by any of them under or in connection with this Agreement or any
other Loan Document (except for its own gross negligence or willful
misconduct), or (b) responsible in any manner to any of the Banks for
any recital, statement, representation or warranty made by the
Borrower or any officer thereof contained in this Agreement or any
other Loan Document or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent
under or in connection with, this Agreement or any other Loan Document
or for the value of any collateral or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any
other Loan Document or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Agent shall not be under any
obligation to any Bank to ascertain or to inquire as to the observance
or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of the Borrower or any of its
Subsidiaries.
7 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, facsimile or telex message, statement,
order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person
or Persons and upon any advice and statements of legal counsel
(including counsel to the Borrower), independent accountants and other
experts selected by the Agent. The Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or
concurrence of the Majority Banks as it deems appropriate or it shall
first be indemnified to its satisfaction by the Banks against any and
all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. The Agent shall in all
cases be fully protected in acting, or in refraining from acting,
under this Agreement or any other Loan Document in accordance with a
request from or the consent of the Majority Banks and such request or
consent and any action taken or failure to act pursuant thereto shall
be binding upon all the Banks and all future holders of the Loans or
any portion thereof.
(b) For purposes of determining compliance with the conditions
specified in Sections 5.01 and 5.02, each Bank shall be deemed to have
consented to, approved or accepted or to be satisfied with each
document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to the Banks unless an
officer of the Agent responsible for the transactions contemplated by
the Loan Documents shall have received notice from such Bank prior to
the initial Borrowing after the Restatement Date specifying its
objection thereto and either such objection shall not have been
withdrawn by notice to the Agent to that effect or such Bank shall not
have made available to the Agent such Bank's Percentage Share of such
Borrowing.
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8 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to payment defaults, unless the Agent
shall have received notice from a Bank or the Borrower referring to
this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that
the Agent receives such a notice, the Agent shall give prompt notice
thereof to the Banks. The Agent shall take such action with respect
to such Default or Event of Default as shall be requested by the
Majority Banks in accordance with Article VIII; provided however, that
unless and until the Agent shall have received any such request from
the Majority Banks, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best
interests of the Banks.
9 Credit Decision. Each Bank expressly acknowledges that
neither the Agent nor any of its Affiliates nor any officer, director,
employee, agent, attorney-in-fact of any of them has made any
representation or warranty to it and that no act by the Agent
hereinafter taken, including any review of the affairs of the Borrower
and its Subsidiaries, shall be deemed to constitute any representation
or warranty by the Agent to any Bank. Each Bank represents to the
Agent that it has, independently and without reliance upon the Agent
or any other Bank, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation
into the business, prospects, properties, operations or condition,
financial or otherwise, and creditworthiness of the Borrower and made
its own decision to enter into this Agreement and extend credit to the
Borrower hereunder. Each Bank also represents that it will,
independently and without reliance upon the Agent or any other Bank,
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this
Agreement, and to make such investigations as it deems necessary to
inform itself as to the business, prospects, properties, operations or
condition, financial or otherwise, and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly
required to be furnished to the Banks by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Bank
with any credit or other information concerning the business,
prospects, properties, operations or condition, financial or
otherwise, and creditworthiness of the Borrower which may come into
the possession of the Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
10 Indemnification. The Banks agree to indemnify the Agent
(to the extent not reimbursed by or on behalf of the Borrower and
without limiting the obligation of the Borrower to do so), ratably
according to their respective Percentage Shares, from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including at any time after the
repayment of the Loans and all other Obligations) be imposed on,
incurred by or asserted against the Agent in any way relating to or
arising out of this Agreement or any other Loan Document or any
documents contemplated by or referred to herein or therein or the
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transactions contemplated hereby or thereby or any action taken or
omitted by the Agent under or in connection with any of the foregoing;
provided however, that no Bank shall be liable for the payment to the
Agent of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Bank
agrees to reimburse the Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including fees and expenses of
counsel and the allocated cost of in-house counsel) incurred by the
Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether
through negotiation, legal proceedings or otherwise) of, or legal
advice in respect of its or the Banks' rights or responsibilities
under, this Agreement, any other Loan Document or any document
contemplated by or referred to herein or therein to the extent that
the Agent is not reimbursed for such expenses by or on behalf of the
Borrower.
11 Agent in Individual Capacity. Bank of America and its
Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower and its Subsidiaries
as though Bank of America were not the Agent hereunder. With respect
to its Loans, Bank of America shall have the same rights and powers
under this Agreement as any Bank and may exercise the same as though
it were not the Agent, and the terms "Bank" and "Banks" shall include
Bank of America in its individual capacity.
12 Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Banks and the Borrower and may be
removed at any time with or without cause by the Majority Banks. Upon
any such resignation or removal, the Majority Banks shall have the
right to appoint a successor Agent which shall be a commercial bank
organized or chartered under the laws of the United States of America
or of any State thereof and having combined capital and surplus of at
least $500,000,000. If no successor Agent shall have been so
appointed by the Majority Banks, and shall have accepted such
appointment, within 30 days after the notice of resignation or the
removal of the retiring Agent, then the retiring Agent may, on behalf
of the Banks, with the consent of the Borrower, which shall not be
unreasonably withheld, appoint a successor Agent which shall be a
commercial bank organized or chartered under the laws of the United
States of America or of any State thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations
under this Agreement and the other Loan Documents. After any retiring
Agent's resignation or removal hereunder as Agent, the provisions of
this Article IX and Sections 10.04 and 10.05 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it
was Agent under this Agreement and the other Loan Documents.
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MISCELLANEOUS
13 Notices, Etc. All notices, requests and other
communications provided to any party under this Agreement shall,
unless otherwise expressly specified herein, be in writing (including
by telex or by facsimile) and mailed by overnight delivery, telexed,
transmitted by facsimile or delivered: if to the Borrower, to its
address specified on the signature pages hereof; if to any Bank, to
its Domestic Lending Office; and if to the Agent, to its address
specified on the signature pages hereof; or, as to the Borrower or the
Agent, at such other address as shall be designated by such party in a
written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written
notice to the Borrower and the Agent. All such notices and
communications shall be effective, if telexed, when confirmed by telex
answerback, if transmitted by facsimile, when transmitted by facsimile
and confirmed by telephone or facsimile, or, if mailed by overnight
delivery or delivered, upon delivery, except that notices and
communications to the Agent pursuant to Article II or IX shall not be
effective until received by the Agent.
14 Amendments, Etc. No amendment or waiver of any provision
of this Agreement or of any other Loan Document, and no consent to any
departure by the Borrower herefrom or therefrom, shall in any event be
effective unless the same shall be in writing, acknowledged by the
Agent and signed or consented to by the Majority Banks, and then such
waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by
all the Banks, do any of the following:
(a) increase the Commitments of the Banks (other than by
assignment) or subject the Banks to any additional monetary
obligation;
(b) reduce the principal of, or interest (other than any
default interest payable pursuant to Section 2.10) on, the Committed
Loans or any fees payable hereunder;
(c) extend the Final Maturity Date or any date fixed for any
payment of interest on, the Committed Loans or any fees payable
hereunder;
(d) change the percentage of the Commitments or the percentage
of the aggregate unpaid principal amount of the Loans which shall be
required for the Banks or any of them to take any action hereunder;
(e) amend this Section 10.02; or
(f) amend or waive the provisions of Section 5.01 or 5.02.
15 No Waiver; Remedies. No failure on the part of any Bank
or the Agent to exercise, and no delay in exercising, any right,
remedy, power or privilege hereunder or under any other Loan Document
shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, remedy, power or privilege preclude any
other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
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16 Costs and Expenses. The Borrower agrees to pay on demand:
(a) all costs and expenses incurred by the Agent in connection
with the preparation, execution, delivery, administration,
modification and amendment of this Agreement or any other Loan
Document or any other document to be delivered hereunder or thereunder
or in connection with the transactions contemplated hereby or thereby,
or with respect to advising the Agent as to its rights and
responsibilities under the Loan Documents, including the reasonable
fees and out-of-pocket expenses of counsel for the Agent (including
the allocated cost of in-house counsel);
(b) all costs and expenses incurred by the Agent or any Bank
in connection with the enforcement or preservation of any rights under
this Agreement or any other Loan Document or in connection with any
restructuring or "work-out" (whether through negotiations, legal
proceedings or otherwise), including the reasonable fees and
out-of-pocket expenses of counsel for the Agent or such Bank
(including the allocated cost of in-house counsel); and
(c) all costs and expenses of the Agent incurred in connection
with due diligence, transportation, use of computers, duplication,
appraisals, surveys, audits, insurance, consultants and search reports
and all filing and recording fees and title insurance premiums.
17 Indemnity.
(a) The Borrower agrees to indemnify, defend, reimburse and
hold harmless the Agent, each Bank and each of their Affiliates, and
each of their respective directors, officers, employees, agents and
advisors (each, an "Indemnified Party") from and against all claims,
actions, proceedings, suits, damages, losses, liabilities, costs and
expenses, including the reasonable fees and out-of-pocket expenses of
counsel (including the allocated cost of in-house counsel) which may
be incurred by or asserted against any Indemnified Party in connection
with, or arising out of, or relating to (i) any transaction or
proposed transaction (whether or not consummated) financed or to be
financed, in whole or in part, directly or indirectly, with the
proceeds of any Borrowing or otherwise contemplated in this Agreement;
(ii) the entering into and performance of this Agreement and any other
Loan Document by the Agent or any Bank or any action or omission of
the Borrower in connection therewith; or (iii) any investigation,
litigation, suit, action or proceeding (regardless of whether an
Indemnified Party is a party thereto) which relates to any of the
foregoing or to any Environmental Claim, unless and to the extent such
claim, action, proceeding, suit, damage, loss, liability, cost or
expense was solely attributable to such Indemnified Party's gross
negligence or willful misconduct as determined by a final judgment of
a court of competent jurisdiction.
(b) The Agent and each Bank agree that in the event that any
investigation, litigation, suit, action or proceeding is asserted or
threatened in writing or instituted against it or any other
Indemnified Party, or any remedial, removal or response action is
requested of it or any other Indemnified Party, for which the Agent or
any Bank may desire indemnity or defense hereunder, the Agent or such
Bank shall promptly notify the Borrower in writing.
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(c) The Borrower at the request of the Agent or any Bank shall
have the obligation to defend against such investigation, litigation,
suit, action or proceeding or requested remedial, removal or response
action, and the Agent, in any event, may participate in the defense
thereof with legal counsel of the Agent's choice. In the event that
the Agent or any Bank requests the Borrower to defend against such
investigation, litigation, suit, action or proceeding or requested
remedial, removal or response action, the Borrower shall promptly do
so and the Agent or the affected Bank shall have the right to have
legal counsel of its choice participate in such defense. No action
taken by legal counsel chosen by the Agent or any Bank in defending
against any such investigation, litigation, suit, action or proceeding
or requested remedial, removal or response action shall vitiate or any
way impair the Borrower's obligations and duties hereunder to
indemnify and hold harmless any Indemnified Party.
18 Right of Set-off. Upon the occurrence and during the
continuation of any Event of Default, each Bank is hereby authorized
at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the credit or
the account of the Borrower against any and all of the Obligations,
whether or not such Bank shall have made any demand under this
Agreement. Each Bank agrees promptly to notify the Borrower after any
such set-off and application made by such Bank; provided, however,
that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Bank under this
Section 10.06 are in addition to any other rights and remedies
(including other rights of set-off) which such Bank may have.
19 Binding Effect. The provisions of this Agreement shall be
binding upon and inure to the benefit of the Borrower, the Agent and
each Bank and their respective successors and assigns, except that the
Borrower shall not have the right to assign or transfer its rights or
obligations hereunder or any interest herein without the prior written
consent of all the Banks.
20 Assignments, Participations Etc.
(a) (i) Each Bank may, with the prior written approval of the
Borrower and the Agent, assign to one or more Eligible Assignees,
which approvals will not be unreasonably withheld, and (ii) each Bank
may, without the consent of the Borrower or the Agent, assign to any
of its wholly-owned Subsidiaries which is an Eligible Assignee or to
any other Bank, other than a Bank replaced pursuant to Section
3.14(b), (each such Person, an "Assignee"), all or any fraction of its
Committed Loans, if any, owed to it and its Commitment in a minimum
amount of $10,000,000; provided, however, that the Borrower shall not,
as a result of an assignment by any Bank to any of its wholly-owned
Subsidiaries incur any increased liability for Taxes and Other Taxes
pursuant to Section 3.05.
(b) No assignment shall become effective, and the Borrower and
the Agent shall be entitled to continue to deal solely and directly
with each Bank in connection with the interests so assigned by such
Bank to an Assignee, until (i) written notice of such assignment,
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together with an agreement to be bound, payment instructions,
addresses and related information with respect to such Assignee, shall
have been given to the Borrower and the Agent by such Bank and such
Assignee, in substantially the form of Exhibit 10.08 (a "Notice of
Assignment"), and such Bank and such Assignee shall have executed in
connection therewith an Assignment and Assumption Agreement in
substantially the form of Attachment A to such Notice of Assignment,
(ii) a processing fee in the amount of $1,000 shall have been paid to
the Agent by the assignor Bank or the Assignee, and (iii) either (A)
five Business Days shall have elapsed after receipt by the Agent of
the items referred to in clauses (i) and (ii) or (B) if earlier, the
Agent shall have notified the assignor Bank and the Assignee of its
receipt of the items mentioned in clauses (i) and (ii) and that it has
acknowledged the assignment by countersigning the Notice of
Assignment.
(c) From and after the effective date of any assignment, (i)
the Assignee thereunder shall be deemed automatically to have become a
party hereto and, to the extent that rights and obligations hereunder
have been assigned to such Assignee by the assignor Bank, shall have
the rights and obligations of a Bank hereunder and under each other
Loan Document, and (ii) the assignor Bank, to the extent that rights
and obligations hereunder have been assigned by it to the Assignee,
shall be released from its obligations hereunder and under the each
other Loan Document.
(d) Any Bank may at any time sell to one or more banks or
other Persons (each of such Persons being herein called a
"Participant") participating interests in any of the Loans, its
Commitment or any other interest of such Bank hereunder; provided,
however, that
(i) no participation contemplated in this Section 10.08
shall relieve such Bank from its Commitment or its other obligations
hereunder or under any other Loan Document;
(ii) such Bank shall remain solely responsible for the
performance of its Commitment and such other obligations;
(iii) the Borrower and the Agent shall continue to deal solely
and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement; and
(iv) no Participant, unless such Participant is itself a Bank,
shall be entitled to require such Bank to take or refrain from taking
any action hereunder or under any other Loan Document, except that
such Bank may agree with any Participant that such Bank will not,
without such Participant's consent, approve any amendment to, or any
consent or waiver with respect to, this Agreement or any other Loan
Document, to the extent such amendment, consent or waiver would
require unanimous consent of the Banks as described in the proviso to
Section 10.02.
The Borrower acknowledges and agrees that each Participant, for
purposes of Sections 3.05, 3.06, 3.08, 3.10, 3.11 or 10.06 shall
be considered a Bank; provided, however, that, for purposes of
Sections 3.05, 3.08, 3.10 and 3.11, no Participant shall be
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entitled to receive any payment or compensation in excess of that
to which such Participant's selling Bank would be entitled with
respect to the amount of such Participant's participation
interests if such Bank had not sold such participation interests.
(e) Notwithstanding any other provision of this Agreement,
nothing contained in this Agreement shall prevent any Bank from
pledging or assigning its interest in the Loans to a Federal Reserve
Bank in the Federal Reserve System of the United States of America in
accordance with applicable law; provided, however, that no such pledge
or assignment shall release any Bank from its obligations hereunder.
21 Confidentiality. Each Bank agrees to take normal and
reasonable precautions and exercise due care to maintain the
confidentiality of all non-public information provided to it by the
Borrower or by the Agent on the Borrower's behalf in connection with
this Agreement or any other Loan Document and agrees and undertakes
that neither it nor any of its Affiliates shall use any such
information for any purpose or in any manner other than pursuant to
the terms contemplated by this Agreement. Any Bank may disclose such
information (a) at the request of any bank regulatory authority or in
connection with an examination of such Bank by any such authority; (b)
pursuant to subpoena or other court process; (c) when required to do
so in accordance with the provisions of any applicable law; (d) at the
express direction of any agency of any State of the United States of
America or of any other jurisdiction in which such Bank conducts its
business; and (e) to such Bank's affiliates, independent auditors,
counsel and other professional advisors. Notwithstanding the
foregoing, the Borrower authorizes each Bank to disclose to any
Participant or Assignee and any prospective Participant and Assignee
such financial and other information in such Bank's possession
concerning the Borrower or its Subsidiaries which has been delivered
to the Banks pursuant to this Agreement or any other Loan Document or
which has been delivered to the Banks by the Borrower in connection
with the Banks' credit evaluation of the Borrower prior to entering
into this Agreement; provided, however, that such Participant or
Assignee or prospective Participant or Assignee agrees in writing to
such Bank to keep such information confidential to the same extent
required of the Banks hereunder.
.27 Survival. The obligations of the Borrower under Sections
3.05, 3.08, 3.10, 3.11, 3.12, 10.04 and 10.05, and the obligations of
the Banks under Sections 3.05(h) and 9.07, shall in each case survive
repayment or purchase of the Loans or any termination of this
Agreement and the Commitments. The representations and warranties
made by the Borrower in this Agreement and in each other Loan Document
shall survive the execution and delivery of this Agreement and each
other Loan Document.
.28 Headings. The various headings of this Agreement are
inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement or any provisions hereof or thereof.
.29 Governing Law and Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; and
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(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF
THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER HEREBY
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. THE BORROWER
HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY
DOCUMENT RELATED HERETO.
.30 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto on
separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one
and the same agreement.
.31 Entire Agreement. THIS AGREEMENT EMBODIES THE ENTIRE
AGREEMENT AND UNDERSTANDING AMONG THE BORROWER, THE BANKS AND THE
AGENT, AND SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS OF SUCH
PERSONS RELATING TO THE SUBJECT MATTER HEREOF EXCEPT FOR THE FEE
LETTER AND ANY PRIOR ARRANGEMENTS MADE WITH RESPECT TO THE PAYMENT BY
THE BORROWER OF (OR ANY INDEMNIFICATION FOR) ANY FEES, COSTS OR
EXPENSES PAYABLE TO OR INCURRED (OR TO BE INCURRED) BY OR ON BEHALF OF
THE AGENT OR THE BANKS.
.32 Waiver of Jury Trial. THE AGENT, THE BANKS AND THE
BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE
AGENT, THE BANKS OR THE BORROWER. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE AGENT AND THE BANKS TO ENTER INTO THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
TYSON FOODS, INC.
By: /s/ Gerald Johnston
Title: Executive Vice President,
Finance
Address for notices:
2210 West Oaklawn Drive
Springdale, Arkansas 72764
Attention: Gerald Johnston
Facsimile No.: (501) 290-4028
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: /s/ Frank H. Woo
Title: Assistant Vice President
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Address for notices:
Agency Management Services #5596
1455 Market Street
12th Floor
San Francisco, California 94103
Attention: Frank H. Woo
Telex No.: 372-6050
Answerback: BAGASFO
Facsimile No.: (415) 622-4894
Address for payments:
ABA #121-000-3585F
Attention: Agency Management
Services #5596
1850 Gateway Boulevard
Concord, California 94520
Credit to Account number:
1233-6-15172
Reference: Tyson
With copy to:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
333 Clay Street, Suite 4550
Houston, Texas 77002-4103
Attention: Michael J. Dillon
Telex No.: 170-513
Answerback: BOAH
Facsimile No.: (713) 651-4841
THE CHASE MANHATTAN BANK N.A.,
as Co-Agent
By: /s/ Thomas T. Daniels
Title: Vice President
CHEMICAL BANK, as Co-Agent
By: /s/ Beth F. Herman
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.
(RABOBANK NEDERLAND),
NEW YORK BRANCH, as Co-Agent
By: /s/ Jess E. Jarratt
Title: Vice President
By: /s/ August Braaksma
Title: Vice President
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<PAGE>
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Co-Agent
By: /s/ Stephen B. King
Title: Vice President
NATIONAL WESTMINSTER BANK Plc,
as Co-Agent
By: /s/ Steven Parker
Title: Vice President
NATIONSBANK OF TEXAS, N.A.,
as Co-Agent
By: /s/ Steven A. Deily
Title: Senior Vice President
SOCIETE GENERALE
SOUTHWEST AGENCY, as Co-Agent
By: /s/ Louis P. Laville
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ Michael J. Dillon
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Ashby
Title: Senior Manager Loan Operations
THE BANK OF TOKYO TRUST COMPANY
By: /s/ Sharon Fountain
Title: Vice President
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CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ W. Leroy Startz
Title: First Vice President
THE CHASE MANHATTAN BANK N.A.
By: /s/ Thomas T. Daniels
Title: Vice President
CHEMICAL BANK
By: /s/ Beth F. Herman
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.
(RABOBANK NEDERLAND),
NEW YORK BRANCH
By: /s/ Jess E. Jarratt
Title: Vice President
By: /s/ August Braaksma
Title: Vice President
CREDIT LYONNAIS
NEW YORK BRANCH
By: /s/ Robert Ivosevich
Title: Senior Vice President
THE DAI-ICHI KANGYO BANK LTD
NEW YORK BRANCH
By: /s/ Andreas Panteli
Title: Vice President
FIRST AMERICAN NATIONAL BANK
By: /s/ Elizabeth H. Vaughn
Title: Vice President
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THE FIRST NATIONAL BANK
OF CHICAGO
By: /s/ Joan D. Winstein
Title: Vice President
THE FUJI BANK, LIMITED,
HOUSTON AGENCY
By: /s/ David Kelley
Title: Vice President & Senior
Manager
ISTITUTO BANCARIO SAN PAOLO
DI TORINO SPA
By: /s/ Robert S. Wurster
Title: First Vice President
By: /s/ William J. DeAngelo
Title: First Vice President
THE LONG-TERM CREDIT BANK
OF JAPAN, LTD.,
NEW YORK BRANCH
By: /s/ John J. Sullivan
Title: Joint General Manager
THE MITSUBISHI BANK, LTD.
HOUSTON AGENCY
By: /s/ Shoji Honda
Title: General Manager
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Stephen B. King
Title: Vice President
NATIONAL WESTMINSTER BANK Plc
NEW YORK BRANCH
By: /s/ Steven Parker
Title: Vice President
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NATIONAL WESTMINSTER BANK Plc
NASSAU BRANCH
By: /s/ Steven Parker
Title: Vice President
NATIONSBANK OF TEXAS, N.A.
By: /s/ Steven A. Deily
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Stephen V. Prostor
Title: Assistant Vice President
ROYAL BANK OF CANADA
By: /s/ J.D. Frost
Title: Senior Manager
THE SANWA BANK, LIMITED,
DALLAS AGENCY
By: /s/ Robert S. Smith
Title: Assistant Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ Louis P. Laville
Title: Vice President
THE SUMITOMO BANK, LTD.,
HOUSTON AGENCY
By: /s/ Tatsuo Ueda
Title: General Manager
THE TOKAI BANK, LIMITED,
NEW YORK BRANCH
By: /s/ M. Muto
Title: Deputy General Manager
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TRUST COMPANY BANK
By: /s/ Jeffrey A. Howard
Title: Corporate Banking Officer
By: /s/ F. McClellan Deaver, III
Title: Vice President
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Five-Year Facility [CONFORMED COPY]
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
among
TYSON FOODS, INC.,
as Borrower
THE BANKS NAMED HEREIN
THE CHASE MANHATTAN BANK N.A.
CHEMICAL BANK
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK, B.A.
(RABOBANK NEDERLAND), NEW YORK BRANCH
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
NATIONAL WESTMINSTER BANK Plc
NATIONSBANK OF TEXAS, N.A.
SOCIETE GENERALE
as Co-Agents
and
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
as Agent
Dated as of May 26, 1995
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TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Certain Defined Terms 1
1.02 Computation of Time Periods 15
1.03 Accounting Matters 15
1.04 Certain Terms 16
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
2.01 Amounts and Terms of Commitments 17
2.02 Procedure for Committed Borrowings 17
2.03 Bid Borrowings 18
2.04 Procedure for Bid Borrowings 18
2.05 Evidence of Indebtedness 22
2.06 Voluntary Termination or Reduction of the Commitments 22
2.07 Optional Prepayments 23
2.08 Repayment 23
(a) The Committed Loans 23
(b) The Bid Loans 23
2.09 Interest 24
2.10 Default Interest 24
2.11 Continuation and Conversion Elections for Committed Borrowings 25
ARTICLE III
FEES; PAYMENTS; TAXES; CHANGES IN CIRCUMSTANCES
3.01 Fees 27
3.02 Computation of Fees and Interest 27
3.03 Payments by the Borrower 28
3.04 Payments by the Banks to the Agent 29
3.05 Taxes 30
3.06 Sharing of Payments, Etc. 35
3.07 Inability to Determine Rates 36
3.08 Increased Costs 36
3.09 Illegality 36
3.10 Capital Adequacy 37
3.11 Funding Losses 37
3.12 Additional Interest on Eurodollar Loans 38
3.13 Certificates of Banks 38
3.14 Change of Lending Office; Replacement Bank 39
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01 Corporate Existence; Compliance with Law 40
4.02 Corporate Authorization; No Contravention;
Governmental Authorization 40
4.03 Enforceable Obligations 41
4.04 Taxes 41
4.05 Financial Matters 42
4.06 Litigation 42
4.07 Subsidiaries 42
4.08 Liens 43
4.09 No Burdensome Restrictions; No Defaults 43
4.10 Investment Company Act 43
4.11 Use of Proceeds; Margin Regulations 43
4.12 Assets 44
4.13 Labor Matters 44
4.14 Environmental Matters 44
4.15 Completeness 45
4.16 ERISA 46
4.17 Insurance 48
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions Precedent to Effectiveness 49
(a) Credit Agreement and Notes 49
(b) Board Resolutions; Approvals; Incumbency Certificates 49
(c) Articles of Incorporation; By-laws and Good Standing 49
(d) Legal Opinion 50
(e) Certificate 50
(f) Other Documents 50
5.02 Additional Conditions Precedent to the First
Committed Borrowing after the Restatement Date 50
(a) Fees, Costs and Expenses 50
(b) Original Agreement 50
(c) Original Banks 51
5.03 Conditions Precedent to All Borrowings 51
(a) Notice of Borrowing 51
(b) Continuation of Representations and Warranties 51
(c) No Existing Default 51
(d) Other Assurances 51
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01 Compliance with Laws, Etc. 52
6.02 Use of Proceeds 52
6.03 Payment of Obligations, Etc. 52
6.04 Insurance 52
6.05 Preservation of Corporate Existence, Etc. 52
6.06 Access 53
6.07 Keeping of Books 53
6.08 Maintenance of Properties 53
6.09 Financial Statements 53
6.10 Reporting Requirements 54
6.11 Notices Regarding ERISA 55
6.12 Employee Plans 57
6.13 Environmental Compliance; Notice 57
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ARTICLE VII
NEGATIVE COVENANTS
7.01 Limitations on Liens 59
7.02 Limitation on Indebtedness 62
7.03 Lease Obligations 63
7.04 Restricted Payments 63
7.05 Mergers, Etc. 64
7.06 Investments in Other Persons 65
7.07 Assets 66
7.08 Change in Nature of Business 66
7.09 Capital Structure 66
7.10 Transactions with Affiliates, Etc. 67
7.11 Accounting Changes 67
7.12 Margin Regulations 68
7.13 Compliance with ERISA 68
7.14 Speculative Transactions 68
7.15 Debt Ratio 69
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Events of Default 70
(a) Non-Payment 70
(b) Representations and Warranties 70
(c) Specific Defaults 70
(e) Default under Other Agreements 70
(f) Bankruptcy or Insolvency 71
(g) Involuntary Proceedings 71
(h) Monetary Judgements 72
(i) Non-Monetary Judgments 72
(j) ERISA 72
(k) Change in Control 73
8.02 Remedies 74
8.03 Rights Not Exclusive 74
ARTICLE IX
THE AGENT
9.01 Appointment 75
9.02 Delegation of Duties 75
9.03 Liability of Agent 75
9.04 Reliance by Agent 76
9.05 Notice of Default 76
9.06 Credit Decision 77
9.07 Indemnification 77
9.08 Agent in Individual Capacity 78
9.09 Successor Agent 78
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ARTICLE X
MISCELLANEOUS
10.01 Notices, Etc. 80
10.02 Amendments, Etc. 80
10.03 No Waiver; Remedies 81
10.04 Costs and Expenses 81
10.05 Indemnity 81
10.06 Right of Set-off 83
10.07 Binding Effect 83
10.08 Assignments, Participations Etc. 83
10.09 Confidentiality 85
10.10 Survival 86
10.11 Headings 86
10.12 Governing Law and Jurisdiction 86
10.13 Execution in Counterparts 86
10.14 Entire Agreement 86
10.15 Waiver of Jury Trial 86
Exhibits
Exhibit 2.02 Form of Notice of Borrowing
Exhibit 2.04(a) Form of Competitive Bid Request
Exhibit 2.04(b) Form of Competitive Bid
Exhibit 2.05(b) Form of Committed Loan Note
Exhibit 2.05(c) Form of Bid Note
Exhibit 2.11 Form of Notice of Conversion/Continuation
Exhibit 5.01 Form of Opinion of Corporate Counsel
Exhibit 5.02 Form of Confirmation of Non-Participation
Exhibit 6.09 Form of Compliance Certificate
Exhibit 10.08 Form of Notice of Assignment
Attachment A to Form of Assignment and Assumption
Exhibit 10.08 Agreement
Schedules
Schedule 1.01(a) Commitments; Percentage Shares
Schedule 1.01(b) Lending Offices
Schedule 1.01(c) Existing Depositories
Schedule 4.05 Material Liabilities
Schedule 4.06 Pending Litigation
Schedule 4.07(a) Subsidiaries
Schedule 4.07(d) Joint Ventures/Partnerships
Schedule 4.13 Labor Matters
Schedule 4.14 Environmental Matters
Schedule 4.16 Employee Benefit Plans
Schedule 7.01/7.02 Existing Liens and Existing Indebtedness
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364-Day
Facility
FIRST AMENDED AND RESTATED
CREDIT AGREEMENT
This FIRST AMENDED AND RESTATED CREDIT AGREEMENT is
entered into as of May 26, 1995 among TYSON FOODS, INC.,
a Delaware corporation (the "Borrower"), the banks which
are or may, from time to time hereafter, become parties
hereto (the "Banks"), THE CHASE MANHATTAN BANK, N.A.,
CHEMICAL BANK, COOPERATIEVE CENTRALE RAFFEISEN-
BOERENLEENBANK, B.A. (RABOBANK NEDERLAND), MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, NATIONAL WESTMINSTER
BANK, NATIONSBANK OF TEXAS, N.A., and SOCIETE GENERALE, as
Co-Agents (the "Co-Agents"), and BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as Agent for the Banks.
WHEREAS, the Borrower, certain of the Banks and
certain other banks, certain Co-Agents and the Agent are
parties to a Credit Agreement dated as of June 30,
1993 (as amended by Amendment No. 1 to Credit Agreement
dated as of June 8, 1994, the "Original Agreement"); and
WHEREAS, the Banks, the Co-Agents and the Agent
desire to amend and restate the Original Agreement in
its entirety to provide for certain changes in
circumstances and new agreements between the parties
hereto;
NOW, THEREFORE, the parties hereto agree that, from
and after the Restatement Date, the Original Agreement
shall be amended and restated in its entirety to read as
follows:
DEFINITIONS AND ACCOUNTING TERMS
1 Certain Defined Terms. As used in
this Agreement and in any Schedules and Exhibits to this
Agreement, the following terms have the following meanings
(such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Absolute Rate" means a fixed annual rate, expressed
as a percentage.
"Absolute Rate Bid Loan" means any Bid Loan that
bears interest determined with reference to an Absolute
Rate.
"Affiliate" means, with respect to any Person,
any Subsidiary of such Person and any other Person which,
directly or indirectly, controls, is controlled by, or
is under common control with, such Person, and includes,
if such Person is a corporation, each Person who is the
beneficial owner of 5% or more of such corporation's
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outstanding common stock. For purposes of this
definition, "control" means the possession of
the power to direct or cause the direction of management
and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise.
"Agent" means Bank of America in its capacity as agent
for the Banks, together with any successor thereto in such
capacity.
"Agent's Payment Office" means the address for
payments set forth on the signature pages hereof in
relation to the Agent or such other address as the Agent
may from time to time specify in accordance with Section
10.01.
"Agreement" means this First Amended and Restated
Credit Agreement, as from time to time amended,
modified or supplemented.
"Aggregate Commitments" means the aggregate amount of
the Commitments of all the Banks as in effect from time to
time.
"Assignee" has the meaning specified in Section 10.08(a).
"Bank" has the meaning specified in the preamble
and includes each Bank listed on the signature pages hereof
and each Person which becomes a Bank pursuant to Section
10.08.
"Bank Affiliate" means a Person engaged primarily in
the business of commercial banking and that is a Subsidiary
of a Bank or of a Person of which a Bank is a Subsidiary.
"Bank of America" means Bank of America National Trust
and Savings Association, a national banking association.
"Bank of America Rate" has the meaning specified in
the definition of Reference Rate.
"Bid Borrowing" means an extension of credit
hereunder consisting of one or more Bid Loans made to the
Borrower on the same day by one or more Banks.
"Bid Loan" means a Loan made by a Bank to the
Borrower pursuant to Section 2.03 and may be a LIBOR Bid
Loan or an Absolute Rate Bid Loan and includes any
Existing Bid Loan.
"Borrower" has the meaning specified in the preamble.
"Borrowing" means a Committed Borrowing or a Bid
Borrowing.
"Business Day" means any day other than a Saturday,
Sunday or other day on which commercial banks in New York
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City or San Francisco are authorized or required by law to
close and, if the applicable Business Day relates to any
Eurodollar Loan, means such a day on which dealings
are carried on in the London interbank market.
"CERCLA" has the meaning specified in the
definition of Environmental Law.
"Co-Agents" has the meaning specified in the preamble.
"COBRA" has the meaning specified in Section 4.16(k).
"Code" means the Internal Revenue Code of 1986 (or
any successor(s) thereto), as amended from time to time.
"Commitment" means, for each Bank, as the context
may require (a) the amount in dollars set forth in Schedule
1.01(a) opposite the name of such Bank under the heading
"Commitment" or
as otherwise set forth in any Notice of Assignment, as
such amount may be reduced pursuant to Section 2.06 or as a
result of one or more assignments pursuant to Section
10.08 or (b) the obligation of such Bank to extend
credit to the Borrower hereunder in the amount
specified in the immediately preceding clause (a).
"Committed Borrowing" means an extension of credit
hereunder consisting of Committed Loans made, continued or
converted on the same day by the Banks ratably according
to their Percentage Shares and, in the case of
Eurodollar Loans, having the same Interest Periods.
"Committed Loan" means an extension of credit by a
Bank to the Borrower pursuant to Section 2.01 and may be
a Eurodollar Loan or a Reference Rate Loan.
"Competitive Bid" means an offer by a Bank to make a
Bid Loan in accordance with Section 2.04(b).
"Competitive Bid Request" has the meaning
specified in Section 2.04(a).
"Contractual Obligation" means, as to any Person,
any provision of any security issued by such Person or
of any agreement, undertaking, contract, indenture,
mortgage, deed of trust or other instrument, document or
agreement to which such Person is a party or by which it or
any of its property is bound.
"Controlled Group" means, with respect to any Person,
all members of a controlled group of corporations and all
trades or businesses (whether or not incorporated) which
are under common control with such Person and which,
together with such Person, are treated as a single
employer under Section 414(b), (c), (m) or (o) of the Code.
"Debt Ratio" means, at any date of determination, the
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ratio of (a) Indebtedness for Borrowed Money to (b) Total
Capitalization as of the last day of the most recent fiscal quarter
or fiscal year, as the case may be, of the Borrower for which financial
statements have been delivered pursuant to paragraph (a) or (b) of
Section
6.09.
"Default" means any event or condition which, with
the giving of notice or the lapse of time, or both, would
become an Event of Default.
"Domestic Lending Office" has the meaning specified in
the definition of Lending Office.
"Eligible Assignee" means (a) a commercial bank
organized under the laws of the United States of America,
or any state thereof, and having a combined capital and
surplus of at least $100,000,000; (b) a commercial bank
organized under the laws of any other country which is
a member of the Organization for Economic Cooperation
and Development, or a political subdivision of any such
country, and having a combined capital and surplus of at
least $100,000,000, provided such bank is acting through
a branch or agency located in the United States of America;
and (c) any Bank Affiliate.
"Environmental Claim" means any claim, however
asserted, by any Governmental Authority or other Person
alleging potential liability for violation of any
Environmental Law or for release or injury to the environment or threat to
public health, personal injury (including sickness, disease or death),
property damage, natural resources damage, or otherwise
alleging liability for damages, punitive damages, cleanup
costs, removal costs, remedial costs, response costs,
restitution, civil or criminal penalties, injunctive
relief, or other type of relief, resulting from or based
upon (a) the presence, placement, discharge, emission or
release (including intentional and unintentional, negligent
and non-negligent, sudden or non-sudden, accidental or non-
accidental placement, spill, leaks, discharges, emissions
or releases) of any Hazardous Material at, in or from
property, whether or not owned by the Borrower or any of
its Subsidiaries, or (b) any other circumstances
forming the basis of any violation, or alleged
violation, of any Environmental Law.
"Environmental Law" means the Comprehensive
Environmental Response, Compensation, and Liability Act (42
U.S.C. 9601 et seq.) ("CERCLA"), the Hazardous Material Transportation
Act (49 U.S.C. 1801 et seq.), the Resource Conservation and Recovery
Act (42 U.S.C. 6901 et seq.), the Federal Water Pollution Control
Act (33 U.S.C. 1251 et seq.),
the Clean Air Act (42 U.S.C. 7401 et seq.), the Toxic
Substances Control Act (15 U.S.C. 2601 et seq.) and the
Occupational Safety and Health Act (29 U.S.C. 651 et
seq.) ("OSHA"), as such laws have been or hereafter may
be amended, modified or supplemented, and any and all
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analogous future federal, or present or future state or
local, statutes and the regulations promulgated
pursuant thereunder.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time and all
regulations promulgated thereunder.
"ERISA Event" means, with respect to any Person,
(a) a Reportable Event (other than a Reportable Event not
subject to the provision for 30-day notice to the PBGC
under regulations issued under Section 4043 of ERISA); (b)
the withdrawal of such Person or any member of its
Controlled Group from a Plan during a plan year in which it
was a "substantial employer" as defined in Section
4001(a)(2) of ERISA; (c) the filing of a notice of intent
to terminate a Plan or the treatment of a Plan amendment
as a termination under Section 4041 of ERISA; (d) the
institution of proceedings to terminate a Plan by the PBGC;
(e) the failure to make required contributions which
would result in the imposition of a Lien under Section 412
of the Code or Section 302 of ERISA; and (f) any other
event or condition which might reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to
administer, any Plan or the imposition of any liability
under Title IV of ERISA other than PBGC premiums due but not
delinquent under Section 4007 of ERISA.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Federal Reserve Board, as
in effect from time to time.
"Eurodollar Lending Office" has the meaning specified
in the definition of Lending Office.
"Eurodollar Loan" means any Committed Loan that
bears interest at a rate determined with reference to LIBOR.
"Eurodollar Reserve Percentage" means, with respect to
any Interest Period for any Eurodollar Loan made by any Bank,
the reserve percentage applicable during such Interest
Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for
those days in such Interest Period during which any such
percentage shall be so applicable) under regulations issued
from time to time by the Federal Reserve Board for
determining the maximum reserve requirement (including
any emergency, supplemental or other marginal
reserve requirement) for such Bank with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities
having a term equal to such Interest Period.
"Event of Default" has the meaning specified in
Section 8.01.
"Existing Bid Loan" means any bid loan of any
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Bank outstanding under the Original Agreement on the
Restatement Date.
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates
on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not
a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions
received by the Agent from three Federal funds brokers of recognized
standing selected by the Agent.
"Federal Reserve Board" means the Board of Governors
of the Federal Reserve System.
"Fee Letter" means the letter agreement dated as of
the Restatement Date between the Borrower and the Agent
regarding the payment of certain fees.
"Final Maturity Date" means May 24, 1996.
"Form 1001" has the meaning specified in
Section 3.05(f)(i)(B).
"Form 4224" has the meaning specified in
Section 3.05(f)(i)(A).
"GAAP" means generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board, or in such other
statements by such other entity as may be in general use
by significant segments of the accounting
profession, which are applicable to the
circumstances as of the date of determination.
"Governmental Authority" means any nation or
government, any state or other political subdivision thereof
and any central bank (or similar monetary or regulatory
authority) thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Hazardous Materials" means all those substances which
are regulated by, or which may form the basis of liability
under, any Environmental Law, including all substances identified under any
Environmental Law as a pollutant, contaminant,
waste, solid waste, hazardous waste, hazardous
constituent, special waste, hazardous substance,
hazardous material, or toxic substance, or petroleum or
petroleum derived substance or waste.
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"Indebtedness" of any Person means, without
duplication, (a) all indebtedness for borrowed money or for
the deferred purchase price of property or services
(including reimbursement and all other obligations with
respect to surety bonds, letters of credit and bankers'
acceptances, whether or not matured); (b) all obligations evidenced
by notes, bonds, debentures or similar instruments; (c) all indebtedness
created or arising under any conditional sale or other title retention
agreement with respect to property acquired by
such Person (even though the rights and remedies of the
seller or bank under such agreement in the event of default
are limited to repossession or sale of such property); (d)
all obligations under leases which have been or should be,
in accordance with GAAP, recorded as capital leases; (e)
all net obligations with respect to Interest Rate
Contracts; (f) all direct or indirect guaranties in
respect of any obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clause
(a), (b), (c), (d) or (e) above; and (g) all Indebtedness
referred to in clause (a), (b), (c), (d) or (e) above
secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property (including accounts and contracts
rights) owned by such Person, even though such Person has not assumed or
become liable for the payment of such
Indebtedness; provided, however, that if any Indebtedness of any type
referred to above is supported by another type of Indebtedness referred
to above, such Indebtedness shall not be considered more than once for
the purposes of this definition; and provided, further, that for the
purposes of this definition, Indebtedness shall not include any
obligation of the Borrower to make payments to or in respect of the
Hogty Limited Partnership or similar programs in connection with live
inventory, consistent with past practices, or to make
payments to MetLife Leasing or a similar entity under
and in respect of a lease guaranty program or any similar
live inventory program with Arkansas-California Livestock
Company, Inc. or another entity, consistent with past
practices.
"Indebtedness for Borrowed Money" means the sum of
all Indebtedness of the Borrower and its consolidated
Subsidiaries of the type referred to in paragraphs (a),
(b) and (d) of the definition of Indebtedness.
"Indemnified Party" has the meaning specified in
Section 10.05(a).
"Insolvency Proceeding" means (a) any case,
action or proceeding before any court or other
Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership,
dissolution, winding-up or relief of debtors or (b) any
general assignment for the benefit of creditors,
composition, marshalling of assets for creditors or other
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similar arrangement in respect of the creditors of any
Person generally or any substantial portion of the
creditors of such Person; in each case undertaken under
United States Federal or State law or foreign law.
"Interest Payment Date" means (a) with respect to
any Eurodollar Loan or Bid Loan, the last day of each
Interest Period applicable to such Eurodollar Loan or Bid
Loan and (i) with respect to any Interest Period of six
months duration for any Eurodollar Loan, the date which
falls three months after the beginning of such Interest
Period, and (ii) with respect to any Bid Loan, such
intervening date prior to the maturity thereof as may be
agreed between the Borrower and the applicable Bank and (b)
with respect to any Reference Rate Loan, the last day of
each calendar quarter.
"Interest Period" means,
(a) with respect to any Eurodollar Loan, the
period commencing on the Business Day such
Eurodollar Loan is disbursed or on the date on which
a Reference Rate Loan is converted into a Eurodollar
Loan and ending on the date one, two, three or six
months thereafter, as selected by the Borrower in
its Notice of Borrowing or Notice of
Conversion/Continuation; and
(b) with respect to any Bid Loan, the
period specified by the Borrower in the relevant
Competitive Bid Request;
provided, however, that:
(i) in the case of the continuation of a
Eurodollar Loan pursuant to Section 2.11(b),
the Interest Period applicable after the
continuation of such Loan shall commence
on the last day of the preceding Interest Period;
(ii) if any Interest Period
applicable to a Eurodollar Loan would
otherwise end on a day which is not a
Business Day, that Interest Period shall be
extended to the next succeeding Business Day
unless the result of such extension would be to
carry such Interest Period into another
calendar month in which event such Interest
Period shall end on the immediately preceding
Business Day;
(iii) any Interest Period applicable
to a Eurodollar Loan that begins on the last
Business Day of a calendar month (or on a day
for which there is no numerically
corresponding day in the calendar month at
the end of such Interest Period) shall end on
the last Business Day of the calendar month at
the end of such Interest Period; and
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(iv) no Interest Period for any
Loan shall extend beyond the Final Maturity
Date.
"Interest Rate Contracts" means interest rate
protection, cap or collar agreements, interest rate
insurance, and other agreements or arrangements designed
to provide protection against fluctuations in interest
rates.
"IRS" means the Internal Revenue Service of the
United States of America.
"Lending Office" means, with respect to any Bank, (a)
in the case of a Committed Loan, the office or offices of such
Bank specified as its "Domestic Lending Office" or
"Eurodollar Lending Office", as the case may be,
opposite its name in Schedule 1.01(b) or in the
applicable Notice of Assignment or such other office or
offices of such Bank as such Bank may from time to time
specify in writing to the Borrower and the Agent and (b) in
the case of a Bid Loan, the office of such Bank notified by
such Bank to the Borrower as its Lending Office with
respect to such Bid Loan or, if such Bank fails to so
notify the Borrower, such Bank's Domestic Lending Office
listed in Schedule 1.01(b).
"LIBOR" means, for any Interest Period, the rate of
interest determined by the Agent to be the arithmetic mean
(rounded upward to the nearest 1/100%) of the rates of
interest per annum notified to the Agent by each
Reference Bank as the rate of interest at which dollar
deposits in an amount (a) in the case of a Committed Borrowing,
approximately equal to the amount of the Loan to be made or continued as,
or converted into, a Eurodollar Loan by such Reference Bank or (b) in
the case of a Bid Borrowing, approximately equal to the
amount of each LIBOR Bid Loan accepted by the Borrower
pursuant to Section 2.04(c)(ii), and, in each case,
having a maturity equal to such Interest Period, would
be offered to major banks in the London interbank market
at their request at or about 11:00 a.m. (London time) on
the second Business Day before the commencement of such
Interest Period.
"LIBOR Bid Loan" means any Bid Loan that bears interest
at a rate determined with reference to LIBOR.
"LIBOR Bid Margin" has the meaning specified in
Section 2.04(b)(ii)(B).
"Lien" means any lien, charge, security
interest or encumbrance or any other type of
preferential arrangement (including liens or retained security titles
of conditional vendors and capitalized leases but
excluding any right of set-off).
"Loan" means an extension of credit by a Bank
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pursuant to Article II and may be a Committed Loan or a Bid
Loan.
"Loan Documents" means this Agreement, any promissory
notes delivered pursuant to this Agreement, the Notices of
Borrowing, the Notices of Conversion/Continuation and the
Competitive Bid Requests.
"Majority Banks" means at any time Banks holding at
least 51% of the Commitments and, if the Commitments
have been terminated, Banks holding at least 51% of the
then aggregate unpaid principal amount of the Loans made by
the Banks.
"Material Adverse Effect" means (a) an adverse change
in, or an adverse effect upon, the financial
condition, business, prospects or properties of any of (i)
the Borrower or (ii) the Borrower and its Subsidiaries
taken as a whole resulting from a single event or a
series of events within any 12-month period causing the
consolidated Net Worth of the Borrower to be reduced by 30%
or more; (b) any material adverse change in the rights or
remedies of the Banks under the Loan Documents or the
ability of the Borrower to perform its obligations under
any of the Loan Documents; or (c) any material adverse
change in the legality, validity or enforceability of any
Loan Document.
"Moody's" means Moody's Investors Service, Inc. or
any successor to the rating agency business thereof.
"Multiemployer Plan" means, with respect to any
Person, at any time, a "multiemployer plan" within the
meaning of Section 4001(a)(3) of ERISA and to which such
Person or any member of its Controlled Group is making, or
is obligated to make contributions or has made, or been
obligated to make, contributions.
"Net Proceeds" means, with respect to any sale,
lease, transfer, condemnation or other voluntary or
involuntary
disposition of assets, including a Permitted Disposition,
(a) the aggregate amount of cash proceeds
received by the Borrower or any of its
Subsidiaries from such disposition;
minus
(b) the sum of
(i) all fees and expenses,
including customary brokerage commissions,
appraisal fees, survey charges, legal and
investment banking fees and other similar
commissions, charges or fees incurred in
connection with such disposition;
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plus
(ii) all taxes, including
filing, recording or registration fees,
recording taxes and transfer taxes paid (or
payable) and income tax paid in connection with
such disposition;
plus
(iii) the amount of
Indebtedness required to be paid in
connection with such disposition to
satisfy any Lien existing on the property
included in such disposition.
"Net Worth" means, with respect to any Person, at any
date of determination, shareholders' equity as
determined in accordance with GAAP.
"Notice of Assignment" has the meaning specified in
Section 10.08(b).
"Notice of Borrowing" has the meaning specified in
Section 2.02(a).
"Notice of Conversion/Continuation" has the
meaning specified in Section 2.11(b).
"Obligations" means all Loans, other Indebtedness,
advances, debts, liabilities, obligations, covenants and
duties owing by the Borrower to any Bank, the Agent, any
Affiliate of any of the foregoing or any Indemnified
Party, of any kind or nature, present or future, whether
or not evidenced by any note, guaranty or other
instrument, arising under this Agreement or under any other
Loan Document, whether or not for the payment of money,
whether arising by reason of an extension of credit,
loan, guaranty, indemnification, or in any other manner, whether
direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired. The
term "Obligations" includes all interest, charges, expenses, fees,
attorneys' fees and disbursements (including the allocated cost of in-
house counsel) and any other sum chargeable to the Borrower under this
Agreement or any other Loan Document.
"Original Agreement" has the meaning specified in the
first recital to this Agreement.
"OSHA" has the meaning specified in the
definition of Environmental Laws.
"Other Taxes" has the meaning specified in Section
3.05(b).
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"Participant" has the meaning specified in Section
10.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation
or any entity succeeding to any or all of its functions
under ERISA.
"Percentage Share" means, as to any Bank, at any time,
such Bank's percentage share of the Aggregate
Commitments, as set forth opposite such Bank's name in
Schedule 1.01(a) under the heading "Percentage Share"
or set forth in any Notice of Assignment delivered
pursuant to Section 10.08, as such percentage may be
modified from time to time in connection with any
assignment of the Commitment of such Bank in accordance with
the terms hereof.
"Permitted Disposition" means, any disposition
(except as otherwise permitted under Section 7.07) made by
the Borrower or any of its Subsidiaries of any of its
assets if the Net Proceeds of such disposition together
with all other dispositions made in the same fiscal year
does not exceed $100,000,000 in such fiscal year.
"Permitted Investments" means:
(a) securities issued or fully guaranteed or
insured by the United States Government or any agency
thereof and backed by the full faith and credit of the
United States of America having maturities of not more
than one year from the date of acquisition;
(b) certificates of deposit, time
deposits, Eurodollar time deposits, overnight bank
deposits, repurchase agreements, reverse repurchase
agreements or bankers' acceptances, having in each
case a tenor of not more than one year issued by
any Bank, or by any United States commercial bank or
any branch or agency of a nonUnited States bank
licensed to conduct business in the United States
of America having a combined capital and surplus
of not less than $100,000,000 whose short terms
securities are rated at least A-1 by S&P and P-1 by
Moody's;
(c) commercial paper of an issuer rated at
least A-1 by S&P or P-1 by Moody's and in either case
having a tenor of not more than 270 days;
(d) money-market funds invested in short-
term securities rated at least as provided in clause
(b) above; and
(e) deposits with financial institutions
listed in Schedule 1.01(c).
"Permitted Lien Basket" means 10% of consolidated Net Worth.
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"Permitted Liens" has the meaning specified in Section
7.01.
"Person" means an individual, partnership,
corporation, business trust, joint stock company,
trust, unincorporated association, joint venture or
Governmental Authority.
"Plan" means, with respect to the Borrower or any
member of its Controlled Group, at any time, an employee
pension benefit plan as defined in Section 3(2) of
ERISA (including a Multiemployer Plan) that is covered
by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is maintained
for the employees of such Person or any member of its
Controlled Group.
"Reference Banks" means Bank of America,
NationsBank of Texas, N.A. and Soci,t, G,n,rale.
"Reference Rate" means the higher of (a) the Federal
Funds Rate plus 1/2% and (b) the rate of interest (the "Bank
of America Rate") publicly announced from time to time by
Bank of America in San Francisco, California, as its
reference rate. The Bank of America Rate is a rate set
by Bank of America based upon various factors including
Bank of America's cost and desired return, general
economic conditions, and other factors, and is used as a
reference point for pricing some loans, which may be priced
at, above, or below the Bank of America Rate. Any change in
the Bank of America Rate shall take effect at the opening
of business on the day specified in the public announcement
of such change.
"Reference Rate Loan" means any Committed Loan that
bears interest at a rate determined with reference to the
Reference Rate.
"Reportable Event" means any of the events set
forth in Section 4043(b) of ERISA or the regulations
thereunder.
"Replacement Bank" has the meaning specified in
Section 3.14(b).
"Requirement of Law" means, with respect to any
Person, the charter and by-laws or other
organizational or governing documents of such Person,
and any law, rule or regulation (including
Environmental Laws and ERISA) or order, decree or other
determination of an arbitrator or a court or other
Governmental Authority applicable to or binding upon such
Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer" means, with respect to any
Person, the Chief Executive Officer, the President, the
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Chief Financial Officer, the Treasurer, the Assistant
Treasurer or the Secretary of such Person.
"Restatement Date" means the date on which all
conditions precedent set forth in Sections 5.01 and 5.02
have been satisfied or waived by all the Banks.
"S&P" means Standard & Poor's Ratings Group or any
successor to the rating agency business thereof.
"Solvent" means, with respect to any Person, that the
fair value of the assets of such Person (both at fair
valuation and at present fair saleable value) is, on the
date of determination, greater than the total amount
of liabilities (including contingent and unliquidated
liabilities) of such Person as of such date and that, as
of such date, such Person is able to pay all liabilities
of such Person as such liabilities mature and such Person
does not have unreasonably small capital with which to
carry on its business. In computing the amount of
contingent or unliquidated liabilities at any time, such
liabilities will be computed at the amount which, in
light of all the facts and circumstances existing at such
time, represents the amount that can reasonably be
expected to become an actual or matured liability.
"Stock" means all shares, options, interests,
participations or other equivalents (regardless of how
designated) of or in a corporation or other entity,
whether voting or non-voting, of any class and includes,
common stock, preferred stock or warrants or options for
any of the foregoing.
"Subsidiary" means, with respect to any Person,
any corporation more than 50% of whose stock having by
the terms thereof ordinary voting power to elect a
majority of the directors of such corporation is at the
time owned by such Person, directly or indirectly
through one or more Subsidiaries; provided, however, that,
other than for purposes of Section 7.05
and Section 7.15, 801444 Ontario Ltd., T&T Trading Company,
Tyson Export Sales, Inc., Tyson de Mexico, S.A. de C.V.
and Tyson Marketing Ltd. and their Subsidiaries shall not
be deemed to be Subsidiaries of the Borrower.
"Taxes" has the meaning specified in Section 3.05(a).
"Total Capitalization" means, at any date, the sum of
(a) the aggregate amount of Indebtedness for Borrowed Money
and (b) Net Worth of the Borrower and its consolidated
Subsidiaries.
"Tyson Limited Partnership" means that certain
Delaware limited partnership of the same name of which Mr.
Don Tyson is the Managing General Partner.
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2 Computation of Time Periods. In this Agreement, in the computation of
periods of time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until" each means
"to but excluding".
3 Accounting Matters. All accounting terms
not specifically defined herein shall be construed in accordance
with GAAP; provided, however, all computations
determining compliance with Section 7.15 shall use accounting principles
consistent with those applied in the preparation of the financial
statements of the Borrower referred to in Section 4.05.
4 Certain Terms. The words "herein,""hereof" and
"hereunder" and other words of similar import refer to
this Agreement as a whole, including the Exhibits and
Schedules hereto, as the same may from time to time
be amended, supplemented, amended and restated or otherwise modified and
not to any particular Article, Section, paragraph or clause
in this Agreement. The word "includes" and "including"
when used herein is not intended to be exclusive and
means "includes, without limitation" and "including,
without limitation." References herein to an Article,
Section, paragraph or clause shall refer to the appropriate
Article, Section, paragraph or clause in this Agreement.
II
AMOUNTS AND TERMS OF THE LOANS
5 Amounts and Terms of Commitments. Each Bank severally agrees, on
the terms and subject to the conditions hereinafter set forth, to make
Committed Loans to the Borrower (each such Loan, a "Committed Loan")
from time to time on any Business Day during the period
from the Restatement Date to the Final Maturity Date, in
an aggregate principal amount not to exceed at any time
outstanding such Bank's Commitment; provided, however, that
after giving effect to any Borrowing of Committed Loans,
(a) the aggregate principal amount of all outstanding
Committed Loans plus (b) the aggregate principal amount of
all outstanding Bid Loans shall not exceed the Aggregate
Commitments. Within the limits of each Bank's Commitment,
the Borrower may borrow under this Section 2.01, prepay
pursuant to Section 2.07 and reborrow pursuant to this
Section 2.01.
6 Procedure for Committed Borrowings.
(a) Each Committed Borrowing shall be made upon the
irrevocable notice of the Borrower, received by the Agent not later than
12:00 noon (New York City time) (i) three Business Days prior to the date
of the proposed Borrowing, in the case of Eurodollar Loans; and (ii) one
Business Day prior to the date of the proposed Borrowing, in the case of
Reference Rate Loans; provided, however, that in case of a Committed
Borrowing of Reference Rate Loans after the cancellation of a Bid
Borrowing pursuant to Section 2.04(c)(i), the Borrower may give such notice
to the Agent not later than 11:00 a.m. (New York City time) on the date of
such Committed Borrowing. Each such notice of a Committed Borrowing (a
"Notice of Borrowing") shall be in writing (including by facsimile
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confirmed immediately by telephone), in substantially the form of Exhibit
2.02 specifying:
(i) the requested borrowing date, which shall be a
Business Day;
(ii) the aggregate amount of the Borrowing, which
(A) shall not exceed the unused portion of the Aggregate
Commitments and (B) shall be a minimum amount of
$5,000,000 or an integral multiple of $1,000,000 in excess
thereof;
(iii) whether the Borrowing is to be comprised of
Eurodollar Loans or Reference Rate Loans; and
(iv) if the Borrowing is to be comprised of Eurodollar Loans,
the duration of the initial Interest Period applicable to such Loans. If
the Notice of Borrowing shall fail to specify the duration of the initial
Interest Period for any Borrowing comprised of Eurodollar Loans, such
Interest Period shall be three months.
(b) Upon receipt of a Notice of Borrowing, the Agent shall
promptly notify each Bank thereof and of the amount of such Bank's
Percentage Share of such Borrowing.
(c) Each Bank shall make the amount of its Percentage Share of
the Committed Borrowing available to the Agent for the account of the
Borrower at the Agent's Payment Office by 12:00 noon (New York City time)
on the borrowing date requested by the Borrower in funds immediately
available to the Agent. Unless any applicable condition specified in
Article V has not been satisfied, the Agent will make the funds so
received from the Banks promptly available to the Borrower by crediting the
account of the Borrower on the books of Bank of America (or such other
account as shall have been specified by the Borrower) with the aggregate
amount made available to the Agent by the Banks and in like funds as
received by the Agent.
(d) After giving effect to any Committed Borrowing, there shall
not be more than six different Interest Periods in effect in respect of all
Committed Loans together.
7. Bid Borrowings. In addition to Committed Borrowings pursuant to
Section 2.01, each Bank severally agrees
that the Borrower may, as set forth in Section 2.04, from time
to time on any Business Day during the period from the
Restatement Date to the Final Maturity Date, request the
Banks to submit offers to make Bid Loans to the Borrower;
provided, however, that the Banks may, but shall have no
obligation to, submit such offers and the Borrower may,
but shall have no obligation to, accept any such offers; and
provided, further, that at no time shall the sum of (a)
the aggregate principal amount of all outstanding Bid Loans
made by all Banks plus (b) the aggregate principal amount of
all outstanding Committed Loans exceed the Aggregate
Commitments.
8 Procedure for Bid Borrowings.
(a) The Borrower may request a Bid Borrowing hereunder
by delivering to the Agent and each Bank by facsimile not later
than 12:00 noon (New York City time) (i) three Business Days
prior to the date of the proposed Borrowing, in the case of
LIBOR Bid Loans; and (ii) one Business Day prior to the date
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of the proposed Borrowing, in the case of Absolute Rate Bid
Loans, a solicitation for Bid Loans (a "Competitive Bid
Request"), in substantially the form of Exhibit 2.04(a),
specifying:
(i) the requested borrowing date, which shall be a
Business Day;
(ii) the aggregate amount of the Borrowing, which shall be
a minimum amount of $5,000,000 or an integral multiple of $1,000,000 in
excess thereof;
(iii) whether the Bid Loans requested are LIBOR Bid Loans
or Absolute Rate Bid Loans;
(iv) the duration of the Interest Period applicable to
such Bid Loans, which shall be not less than five days and not more than
183 days; and
(v) any other terms to be applicable to such Bid
Loans.
(b) (i) Each Bank may, in response to a Competitive Bid
Request, in its discretion, irrevocably submit to the Borrower a
Competitive Bid containing an offer or offers to make one or more Bid
Loans. Each Competitive Bid must be submitted to the Borrower by facsimile
before 10:00 a.m. (New York City time) (i) two Business Days prior to the
proposed date of Borrowing, in the case of a request for LIBOR Bid Loans
and (ii) on the proposed date of Borrowing, in the case of a request for
Absolute Rate Bid Loans.
(i) Each Competitive Bid shall be in substantially the
form of Exhibit 2.04(b), specifying:
(A) the minimum amount of each Bid Loan for which such
Competitive Bid is being made, which shall be $5,000,000 or an integral
multiple of $1,000,000 in excess thereof, and the maximum amount thereof,
which may not exceed the principal amount of Bid Loans for which
Competitive Bids were requested (but which may exceed such Bank's
Commitment);
(B) the rate or rates of interest per annum offered for each
Bid Loan, which, in the case of a LIBOR Bid Loan, shall be expressed as a
percentage (rounded to the nearest 1/100%) to be added to or subtracted
from the applicable LIBOR (the "LIBOR Bid Margin");)
(C) the applicable Interest Period for each Bid Loan
offered by it; and
(D) the identity and the applicable Lending Office of the
quoting Bank.
A Competitive Bid may contain up to six separate offers by the
quoting Bank with respect to each Interest Period specified in the
related Competitive Bid Request.
(ii) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity with Exhibit
2.04(b) or does not specify all of the information required by clause
(ii) above;
(B) contains qualifying, conditional or similar language;
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(C) proposes terms other than or in addition to those set
forth in the applicable Competitive Bid Request; or
(D) arrives after the time set forth in clause (i) above.
(c) Not later than 11:00 a.m. (New York City time)(i) two
Business Days prior to the proposed date of Borrowing, in the case of
LIBOR Bid Loans and (ii) on the date of such Bid Borrowing, in the case
of Absolute Rate Loans, the Borrower shall either
(i) cancel such Borrowing by giving the Agent and the
Banks notice thereof (which notice may be given by
telephone, confirmed by facsimile); or
(ii) accept one or more of the offers made by any Bank or Banks
pursuant to paragraph (b) above, in its sole discretion, by giving notice
(which notice may be given by telephone, confirmed by facsimile) (A) to
such Bank or Banks of the amount of each Bid Loan (which amount shall be
equal to or greater than the minimum amount, and equal to or less than the
maximum amount, notified to the Borrower by such Bank for such Bid Loan
pursuant to paragraph (b) above) to be made by each such Bank as part of
such Bid Borrowing, and reject any remaining offers made by the Banks and
give notice to that effect, and (B) to the Agent of the date of such
Borrowing and the aggregate amount thereof (which may not exceed the
applicable amount set forth in the related Competitive Bid Request);
provided, however, that acceptance by the Borrower of offers may only be
made on the basis of ascending LIBOR Bid Margins or Absolute Rates within
each Interest Period; and, provided, further, that if offers are made by
two or more Banks with the same LIBOR Bid Margins or Absolute Rates for a
greater aggregate principal amount than the amount for which such offers
are accepted for the related Interest Rate Period, the principal amount of
Bid Loans accepted shall be allocated by the Borrower among such Banks as
nearly as possible (in multiples not less than $1,000,000) in proportion to
the aggregate principal amount of such offers; provided, however, that in
the event the Borrower does not, before the time stated above, either
cancel the proposed Bid Borrowing pursuant to clause (i) above or accept
one or more of the offers pursuant to clause (ii) above, such Bid
Borrowing shall be deemed cancelled and provided further, that in the
event the Borrower accepts one or more of the offers pursuant to clause
(ii) above but does not expressly reject or accept the remaining offers,
such remaining offers shall be deemed rejected.
(d) (i) If the Borrower accepts one or more of
the offers to make Bid Loans made by any Bank or Banks pursuant to
paragraph (c)(ii) above, each such Bank shall, subject to the satisfaction
of the conditions precedent specified in Section 5.03, before 12:00 noon
(New York City time) on the date of the Bid Borrowing, make available to
the Borrower at such Bank's Lending
Office such Bank's portion of such Bid Borrowing in same day funds.
(i) Not later than 5:00 p.m. (New York City time)
on the date of each Bid Borrowing,
(A) the Borrower shall notify the Agent of (1) the aggregate
amount of Bid Loans made in connection with such Bid Borrowing (which
amount may not exceed the amount requested pursuant to Section
2.04(a)(ii)), (2) each date on which any Bid Loan shall mature, (3) the
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principal amount of Bid Loans which shall mature on each such date, (4) the
highest and the lowest Competitive Bid submitted by the Banks in connection
with each Competitive Bid Request, and (5) the highest and the lowest
Competitive Bid accepted by the Borrower; and
(B) the Agent will in turn promptly give to each
Bank the information received from the Borrower in connection with such Bid
Borrowing.
(e) Upon being notified by the Borrower of the amount of,
and the applicable Interest Period for, any LIBOR Bid Loan, the
Agent shall determine LIBOR (as provided in the definition
of LIBOR) and give prompt notice to the Borrower and the
relevant Bank or Banks thereof.
9 Evidence of Indebtedness.
(a) Each Bank, with respect to amounts payable to it
hereunder, and the Agent, with respect to all amounts payable
hereunder, shall maintain on its books in accordance with its
usual practice, loan accounts, setting forth each Committed
Loan, and, in the case of each Bank having made a Bid Loan,
each such Bid Loan, the applicable interest rate and the
amounts of principal, interest and other sums paid and payable
by the Borrower from time to time hereunder with respect
thereto; provided, however, that the failure by any Bank to
record any such amount on its books shall not affect the
obligations of the Borrower with respect thereto. In the case
of any dispute, action or proceeding relating to any amount
payable hereunder, the entries in each such account shall be
conclusive evidence of such amount absent manifest error. In
case of any discrepancy between the entries in the Agent's
books and any Bank's books, such Bank's books shall be
considered correct in the absence of manifest error.
(b) Notwithstanding the foregoing, if any Bank shall
so request for purposes of Section 10.08(e), the obligation to
repay the Committed Loans shall also be evidenced by a promissory
note in the form of Exhibit 2.05(b).
(c) The obligation to repay any Bid Loan shall also, if
so requested by the Bank making such Bid Loan, be evidenced by
a promissory note in the form of Exhibit 2.05(c).
(d) The Banks hereby agree to return to the Borrower on
the Restatement Date any promissory notes issued by the
Borrower under the Original Agreement.
10 Voluntary Termination or Reduction of the Commitments. The
Borrower may, at any time and from time to time, upon not less than
three Business Days' prior notice to the Agent, terminate the Aggregate
Commitments or permanently reduce the Aggregate Commitments by an aggregate
amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof; provided, however, that no such termination or reduction shall be
permitted if, after giving effect thereto and to any prepayment of Loans
made on the effective date thereof, the then outstanding principal
amount of Committed Loans and Bid Loans would exceed the Aggregate
Commitments then in effect and, provided, further, that once reduced in
accordance with this Section 2.06, the Aggregate Commitments
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may not be increased. Any reduction of the Aggregate
Commitments shall be applied to each Bank's Commitment in
accordance with such Bank's Percentage Share.
11 Optional Prepayments.
(a) Subject to Section 3.11, the Borrower may upon
notice to the Agent, stating the proposed date and aggregate
principal amount of the prepayment, received by the Agent (i)
not less than three Business Days prior to the proposed date of
prepayment, in the case of a prepayment of Eurodollar Loans and
(ii) not less than one Business Day prior to the proposed date
of prepayment, in the case of a prepayment of Reference Rate
Loans, prepay ratably among the Banks, the outstanding
principal amount of any Committed Loans in whole or in part,
together with accrued interest to the date of such prepayment
on the principal amount prepaid. Each such partial prepayment
shall be in an aggregate principal amount of not less than
$5,000,000 or an integral multiple of $1,000,000 in excess
thereof; provided, however, that if the aggregate amount of
Eurodollar Loans comprised in the same Borrowing shall be
reduced as a result of any optional prepayment
to an amount less than $5,000,000, the Eurodollar Loans
comprised in such Borrowing shall automatically convert into
Reference Rate Loans at the end of the then current Interest
Period. If any notice of prepayment is given, the principal
amount stated therein, together with accrued interest to
the date of prepayment, shall be due and payable on the date
specified in such notice.
(b) The Borrower may not voluntarily prepay any Bid
Loan prior to the maturity date thereof.
12 Repayment
(a) The Committed Loans. The outstanding principal
amount of all Committed Loans shall be repaid on the Final Maturity Date.
(b) The Bid Loans. Each Bid Loan shall mature, and
the principal amount thereof shall be due and payable, on the last day of
the Interest Period applicable thereto; provided, however, that the
outstanding principal amount of all Bid Loans shall be repaid on the Final
Maturity Date.
13 Interest.
(a) Subject to Section 2.10, each Committed Loan
shall bear interest, at the option of the Borrower as follows,
(i) if such Committed Loan is a Reference Rate Loan, at a
rate per annum equal to the Reference Rate; and
(ii) if such Committed Loan is a Eurodollar Loan, at a rate
per annum equal to the sum of LIBOR plus .1725%.
(b) Accrued and unpaid interest in respect of each
Committed Loan shall be paid on each Interest Payment Date, on the date of
any prepayment or repayment of Committed Loans and, in the case of any
Reference Rate Loan, on each date such Loan is converted into a Eurodollar
Loan.
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(c) The Borrower shall pay to each Bank which had made
a Bid Loan interest on the unpaid principal amount of such Bid Loan from
the date when made until paid in full, on each Interest Payment Date, a
rate per annum equal to LIBOR plus (or minus) the LIBOR Bid Margin, or the
Absolute Rate, as the case may be, as specified by such Bank in its
Competitive Bid pursuant to Section 2.04(b)(ii).
14 Default Interest. During the continuation of
any Event of Default pursuant to Section 8.01(a), or after
acceleration, the Borrower shall pay, on demand, interest (after
as well as before judgment) on the principal amount of all
Loans then outstanding, at a rate per annum which is
determined by increasing the rate of interest then in
effect pursuant to Section 2.09 by 2% per annum; provided,
however, that, on and after the expiration of the
Interest Period applicable to any Eurodollar Loan on the date of
occurrence of such Event of Default or acceleration, the principal
amount of such Loan shall, during the continuation of such Event of Default
or acceleration, bear interest at a rate per annum equal to the
Reference Rate plus 2%; and, provided, further,
that if so requested by the Borrower, the Majority Banks may, in their
sole discretion, waive the provisions of this Section 2.10.
15 Continuation and Conversion Elections for
Committed Borrowings.
(a) The Borrower may upon irrevocable written notice to
the Agent in accordance with paragraph (b) below:
(i) elect to convert, on any Business Day, any Reference Rate
Loans (or any part thereof in an aggregate amount not less than $5,000,000
or an integral multiple of $1,000,000 in excess thereof) into Eurodollar
Loans;
(ii) elect to convert, on the expiration date of
any Interest Period, any Eurodollar Loans maturing on such Interest Payment
Date (or any part thereof in an aggregate amount not less than $5,000,000
or an integral multiple of $1,000,000 in excess thereof) into Reference
Rate Loans; or
(iii) elect to continue, on the expiration date of
any Interest Period, any Eurodollar Loans maturing on such Interest Payment
Date;
provided, however, that if on the expiration date of any Interest
Period the aggregate amount of outstanding Eurodollar Loans
comprised in the same Committed Borrowing shall have been reduced as a
result of the conversion of part thereof to an amount less than
$5,000,000, the remaining Eurodollar Loans comprised in such Borrowing
shall automatically convert into Reference Rate Loans on such date and on
and after such date the right of the Borrower to continue such Loans as
Eurodollar Loans shall terminate.
(b) The Borrower shall deliver a notice of conversion or
continuation (a "Notice of Conversion/Continuation"), in substantially
the form of Exhibit 2.11, to the Agent not later than 12:00 noon (New York
City time) (i) three Business Days prior to the proposed date of conversion
or continuation, if the Committed Loans or any portion thereof are to be
converted into or continued as Eurodollar Loans; and (ii) one Business Day
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prior to the proposed date of conversion, if the Committed Loans or any
portion thereof are to be converted into Reference Rate Loans.
Each such Notice of Conversion/Continuation shall be by facsimile
confirmed immediately by telephone specifying therein:
(i) the proposed date of conversion or continuation;
(ii) the aggregate amount of Committed Loans to be
converted or continued;
(iii) the nature of the proposed conversion or
continuation; and
(iv) the duration of the requested Interest Period.
(c) If, upon the expiration of any Interest Period
applicable to Eurodollar Loans, the Borrower shall have failed to
select a new Interest Period to be applicable to such Eurodollar
Loans, or if an Event of Default shall then have occurred and be
continuing, the Borrower shall be deemed to have elected to
convert such Eurodollar Loans into Reference Rate Loans effective
as of the expiration date of such current Interest Period.
(d) Upon receipt of a Notice of Conversion/Continuation,
the Agent shall promptly notify each Bank thereof or, if no
timely notice is provided, the Agent shall promptly notify each
Bank of the details of any automatic conversion. All conversions
and continuations shall be made pro rata among the Banks based on
the respective outstanding principal amounts of the Loans with
respect to which such notice was given held by each Bank.
(e) After giving effect to any conversion or continuation of
any Committed Loans, there shall not be more than six different Interest
Periods in effect in respect of all Committed Loans together.
II FEES; PAYMENTS; TAXES; CHANGES IN CIRCUMSTANCES
16 Fees.
(a) (i) The Borrower agrees to pay to the Agent for the
account of each Bank a facility fee at a rate per annum equal to .0625%
times such Bank's Commitment (regardless of utilization):
(i) The facility fee shall accrue from the Restatement
Date to the Final Maturity Date and shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter commencing in the
quarter ending on June 30, 1995 and on the Final Maturity Date.
(b) The Borrower agrees to pay to the Agent, for the
Agent's own account, an agency fee in the amount and at the times set forth
in the Fee Letter.
17 Computation of Fees and Interest.
(a) All computations of interest payable in respect of
Reference Rate Loans shall be made on the basis of a year of 365 days or
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366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest under this Agreement shall be made on the
basis of a year of 360 days and actual days elapsed. Interest and fees
shall accrue during each period during which interest or such fees are
computed from the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the Agent
pursuant to any provision of this Agreement shall be conclusive and binding
on the Borrower and the Banks in the absence of manifest error.
(c) Each Reference Bank shall use its best efforts to furnish
quotations of rates to the Agent as contemplated hereby for the purposes of
determining LIBOR for any Eurodollar Loan or LIBOR Bid Loan. If any of the
Reference Banks is unable or otherwise fails to supply such rates to the
Agent upon its request, LIBOR shall be determined on the basis of the
quotations of the remaining two Reference Banks.
18 Payments by the Borrower.
(a) All payments (including prepayments) to be made by
the Borrower hereunder shall be made without set-off or
counterclaim and shall, except as expressly provided herein, be
made to the Agent for the ratable account of the Banks at the
Agent's Payment Office, in dollars and in immediately available
funds, not later than 12:00 noon New York City time on the date
specified herein; provided, however, that unless otherwise
specified herein, each payment in respect of a Bid Loan shall
be made directly to the relevant Bank to the Lending Office of
such Bank. The Agent will promptly after receiving any payment
of principal, interest, fees and other amounts from the
Borrower distribute to each Bank its Percentage Share (or other
applicable share as expressly provided herein) of such payment
for the account of its respective Lending Office. Any payment
which is received by the Agent after 12:00 noon (New York City
time) shall be deemed to have been received on the immediately
succeeding Business Day.
(b) Whenever any payment of a Committed Loan (and
unless otherwise stated in the relevant Competitive Bid
Request, a Bid Loan) shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest and fees,
as the case may be; provided, however, that if such extension
would cause any payment of principal of or interest on
Eurodollar Loans to be made in the next calendar month, such
payment shall be made on the immediately preceding Business
Day.
(c) unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the
Banks hereunder that the Borrower will not make such payment in
full, the Agent may assume that the Borrower has made such
payment in full to the Agent on such date and the Agent may
(but shall not be so required), in reliance upon such
assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and
to the extent the Borrower shall not have so made such payment
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in full to the Agent, each Bank shall repay to the Agent, on
demand, the excess of the amount distributed to such Bank over
the amount, if any, paid by the Borrower, together with
interest thereon at the Federal Funds Rate, for each day from
the date such amount is distributed to such Bank to the date
such Bank repays such amount to the Agent; provided, however,
that if any Bank shall fail to repay such amount within three
Business Days after demand therefor, such Bank shall, from and
after such third Business Day until payment is made to the
Agent, pay interest thereon at a rate per annum equal to the
sum of the Reference Rate plus 1%.
19 Payments by the Banks to the Agent.
(a) Unless the Agent shall have received notice from a Bank on
the Restatement Date, or, with respect to each Borrowing after the
Restatement Date, at least one Business Day prior to the date of such
Borrowing that such Bank will not make available to the Agent for the
account of the Borrower the amount of such Bank's Percentage Share of such
Borrowing, the Agent may assume that such Bank has made such amount
available to the Agent on the date of such Borrowing and the Agent may (but
shall not be so required), in reliance upon such assumption, make available
to the Borrower on such date a corresponding amount. If and to the extent
such Bank shall not have so made such full amount available to the Agent
and the Agent in such circumstances makes available to the Borrower such
amount, such Bank shall, within two Business Days following the date of
such Borrowing, make such amount available to the Agent, together with
interest at the Federal Funds Rate for and determined as of each day during
such period. If such amount is so made available, such payment to the
Agent shall constitute such Bank's Committed Loan on the date of the
Borrowing for all purposes of this Agreement. If such amount is not made
available to the Agent within two Business Days following the date of such
Borrowing, the Agent shall notify the Borrower of such failure to fund
and, on the third Business Day following the date of such Borrowing, the
Borrower shall pay such amount to the Agent for the Agent's account,
together with interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate applicable at
the time to the Loans comprising such Borrowing. Nothing contained in this
Section 3.04(a) shall relieve any Bank which has failed to make available
its Percentage Share of any Committed Borrowing hereunder from its
obligation to do so in accordance with the terms hereof.
(b) he failure of any Bank to make any Committed Loan on the
date of any Committed Borrowing shall not relieve any other Bank of its
obligation hereunder to make a Loan on the date of such Borrowing pursuant
to the provisions contained herein, but no Bank shall be responsible for
the failure of any other Bank to make the Loan to be made by such other
Bank on the date of any Committed Borrowing.
20 Taxes.
(a) Subject to Section 3.05(g), any and all payments
by the Borrower to each Bank or the Agent under this Agreement
shall be made free and clear of, and without deduction or
withholding for, any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all
liabilities with respect thereto incurred in connection with
any Borrowing pursuant to this Agreement, excluding, in the
case of each Bank and the Agent, such taxes (including income
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taxes, franchise taxes or branch profit taxes) as are imposed
on or measured by such Bank's or the Agent's, as the case may
be, net income by the jurisdiction under the laws of which such
Bank or the Agent, as the case may be, is organized or
maintains a Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter
referred to as "Taxes").
(b) In addition, the Borrower shall pay any present or
future stamp or documentary taxes, intangible taxes, mortgage
recording taxes or any other sales, excise or property taxes,
charges or similar levies which arise from any payment made
hereunder or from the execution, delivery or registration of,
or otherwise with respect to, this Agreement or any other Loan
Document (hereinafter referred to as "Other Taxes").
(c) Subject to Section 3.05(g), the Borrower shall
indemnify and hold harmless each Bank and the Agent for the
full amount of Taxes or Other Taxes (including any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under
this Section 3.05) paid by such Bank or the Agent, as the case
may be, and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted. Payment under this indemnification shall be
made within 30 days from the date such Bank or the Agent, as
the case may be, makes written demand therefor.
(d) If the Borrower shall be required by law to deduct
or withhold any Taxes or Other Taxes from or in respect of any
sum
payable hereunder to any Bank or the Agent, then, subject to
Section 3.05(g),
(i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 3.05)
such Bank or the Agent, as the case may be, receives an amount equal to the
sum it would have received had no such deductions been made;
(ii) the Borrower shall make such deductions; and
(iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law.
(e) Within 30 days after the date of any payment by the
Borrower of Taxes or Other Taxes, the Borrower shall furnish to the Agent
the original or a certified copy of a receipt evidencing such payment,
or other evidence of such payment satisfactory to the Agent.
(f) Each Bank which is a foreign Person (i.e., a Person
other than a United States Person for United States Federal
income tax purposes) hereby agrees that:
(i) it shall, unless already delivered pursuant to the
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Original Agreement, no later than on the Restatement Date (or, in the case
of a Bank which becomes a party hereto pursuant to Section 10.08 after the
Restatement Date, the date upon which such Bank becomes a party hereto)
deliver to the Agent (two originals) and to the Borrower (one original):
(A) if any Lending Office is located in the United
States of America, accurate and complete signed copies of IRS Form 4224 or
any successor thereto ("Form 4224"), and/or
(B) if any Lending Office is located outside the
United States of America, accurate and complete signed copies of IRS Form
1001 or any successor thereto ("Form 1001"),
in each case indicating that such Bank is on the
date of delivery thereof entitled to receive payments
of principal, interest and fees for the account
of such Lending Office or Lending Offices under
this Agreement free from withholding of United
States Federal income tax;
(ii) if at any time such Bank changes its Lending
Office or Lending Offices or selects an additional Lending
Office it shall, at the same time, but only to the extent the
forms previously delivered by it hereunder are no longer
effective, deliver to the Agent (two originals) and to the
Borrower (one original), in replacement for the forms
previously delivered by it hereunder:
(A) if such changed or additional Lending Office is
located in the United States of America, accurate and complete signed
originals of Form 4224; or
(B) otherwise, accurate and complete signed
originals of Form 1001,
in each case indicating that such Bank is on the
date of delivery thereof entitled to receive payments
of principal, interest and fees for the account of such
changed or additional Lending Office under this Agreement
free from withholding of United States Federal income
tax;
(iii) it shall, upon the occurrence of any event
(including the passing of time but excluding any event mentioned in clause
(ii) above) requiring a change in the most recent Form 4224 or Form 1001
previously delivered by such Bank, deliver to the Agent (two originals) and
to the Borrower (one original) accurate and complete signed copies of Form
4224 or Form 1001 in replacement for the forms previously delivered by such
Bank;
(iv) it shall, promptly upon the request of the Agent or
the Borrower, deliver to the Agent and the Borrower, such other forms or
similar documentation as may be required from time to time by any
applicable law, treaty, rule or regulation in order to establish such
Bank's tax status for withholding purposes;
(v) if such Bank claims exemption from withholding tax
under a United States tax treaty by providing a Form 1001 and
such Bank sells or grants a participation of all or part of its
rights under this Agreement, it shall notify the Agent of the
percentage amount in which it is no longer the beneficial owner
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under this Agreement. To the extent of this percentage amount,
the Agent shall treat such Bank's Form 1001 as no longer in
compliance with this Section 3.05(f). In the event a Bank
claiming exemption from United States withholding tax by filing
Form 4224 with the Agent, sells or grants a participation in
its rights under this Agreement, such Bank agrees to undertake
sole responsibility for complying with the withholding tax
requirements imposed by Sections 1441 and 1442 of the Code; and
(vi) if the IRS or any authority of the United States
of America or other jurisdiction asserts a claim that the Agent or
the Borrower did not properly withhold tax from amounts paid to
or for the account of any Bank (because the appropriate form
was not delivered, was not properly executed, or because such
Bank failed to notify the Agent of a change in circumstances
which rendered the exemption from withholding tax ineffective),
such Bank shall indemnify the Agent and/or the Borrower, as
applicable, fully for all amounts paid, directly or indirectly,
by the Agent and/or the Borrower, as tax or otherwise,
including penalties and interest, and including any taxes
imposed by any jurisdiction on the amounts payable to the Agent
or the Borrower under this Section 3.05(f), together with all
costs, expenses and attorneys' fees (including the allocated
cost of in-house counsel).
Without limiting or restricting any Bank's right to
increased amounts under Section 3.05(d) from the Borrower upon
satisfaction of such Bank's obligations under the provisions
of this Section 3.05(f), if such Bank is a foreign Person
and is entitled to a reduction in the applicable withholding
tax, the Agent may withhold from any interest to such Bank an
amount equivalent to the applicable withholding tax after taking
into account such reduction. If the forms or other documentation
required by clause (i) above are not delivered to the Agent,
then the Agent may withhold from any interest payment to the Bank
not providing such forms or other documentation, an amount
equivalent to the applicable withholding tax. In addition, the
Agent may also withhold against periodic payments other than
interest
payments to the extent United States withholding tax is not
eliminated by obtaining Form 4224 or Form 1001.
(g) The Borrower shall not be required to pay any
additional amounts in respect of United States Federal income tax
pursuant to Section 3.05(d) to any Bank for the account of any
Lending Office of such Bank:
(i) if the obligation to pay such additional amounts
would not have arisen but for a failure by such Bank to comply with its
obligations under Section 3.05(f) in respect of such Lending Office;
(ii) if such Bank shall have delivered to the Agent and
the Borrower a Form 4224 in respect of such Lending Office
pursuant to Sections 3.05(f)(i)(A), 3.05(f)(ii)(A) or
3.05(f)(iii) and such Bank shall not at any time be entitled
to exemption from deduction or withholding of United States
Federal income tax in respect of payments by the Borrower
hereunder for the account of such Lending Office for any
reason other than a change in United States law or regulations
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or in the official interpretation of such law or regulations
by any Governmental Authority charged with the interpretation
or administration thereof (whether or not having the force of
law) after the date of delivery of such Form 4224; or
(iii) if such Bank shall have delivered to the Agent and
the Borrower a Form 1001 in respect of such Lending Office pursuant to
Sections 3.05(f)(i)(B), 3.05(f)(ii)(B) or 3.05(f)(iii) and such Bank shall
not at any time be entitled to exemption from deduction or withholding of
United States Federal income tax in respect of payments by the Borrower
hereunder for the account of such Lending Office for any reason other than
a change in United States law or regulations or any applicable tax treaty
or regulations or in the official interpretation of any such law, treaty or
regulations by any Governmental Authority charged with the interpretation
or administration thereof (whether or not having the force of law) after
the date of delivery of such Form 1001.
(h) Any and all present or future Taxes, Other Taxes and
related liabilities (including penalties, interest, additions to
tax and expenses) which are not paid by the Borrower
pursuant to and as required by this Section 3.05 shall be
paid by the Bank which received the principal, interest or
fees in respect of which such Taxes, Other Taxes or
related liabilities are payable. Any and all present or
future Taxes or Other Taxes which are required by law to
be deducted or withheld from or in respect of any sum
payable hereunder to any Bank and which are not paid by
the Borrower pursuant to and as required by this Section
3.05 will be deducted or withheld by the Agent without any
increase in the sum payable as provided in Section
3.05(d). Each Bank agrees to indemnify the Agent and hold
the Agent harmless for the full amount of any and all
present or future Taxes, Other Taxes and related
liabilities (including penalties, interest, additions to
tax and expenses, and any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable to the Agent under
this Section 3.05(h)) which are imposed on or with
respect to principal, interest or fees payable to such
Bank hereunder and which are not paid by the Borrower
pursuant to this Section 3.05, whether or not such Taxes,
Other Taxes or related liabilities were correctly or
legally asserted. This indemnification shall be made
within 30 days from the date the Agent makes written
demand therefor.
21 Sharing of Payments, Etc. If other than
as provided in Section 3.05, 3.08, 3.09, 3.10, 3.11 or 3.12,
any Bank shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or
otherwise) on account of any Committed Loan made by it and,
after acceleration of all Obligations pursuant to Section
8.02(b), in respect of any Obligation owing to it (including
with respect to any Bid Loan), in the case of the Committed
Loan, in excess of its Percentage Share of payments on
account of the Committed Loans obtained by all the Banks and,
after acceleration, in excess of its pro rata share of all
Obligations, such Bank shall forthwith (a) notify the Agent of
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such fact and (b) purchase from the other Banks such
participations in the Committed Loans made by them or,
after acceleration, in all Obligations owing to them, as
shall be necessary to cause such purchasing Bank to share
the excess payment ratably with each of the other Banks
according to their respective Percentage Shares or, after
acceleration, their pro rata shares of all Obligations
then owing to them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from
such purchasing Bank, such purchase shall to the extent of
such recovery be rescinded and each other Bank shall repay
to the purchasing Bank the purchase price thereto together
with an amount equal to such paying Bank's ratable share
(according to the proportion of (i) the amount of such paying
Bank's required repayment to (ii) the total amount so recovered
from the purchasing Bank) of any interest or other amount
paid or payable by the purchasing Bank in respect of the
total amount so recovered. The Borrower agrees that any Bank
so purchasing a participation from another Bank pursuant to
the provisions of this Section 3.06 may, to the fullest
extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such
participation as fully as if such Bank were the direct
creditor of the Borrower in the amount of such participation.
The Agent will keep records (which shall be conclusive and
binding in the absence of manifest error), of participations
purchased pursuant to this Section 3.06
and will in each case notify the Banks following any
such purchases.
22 Inability to Determine Rates. If with respect
to any Interest Period for Eurodollar Loans, either (a) any
two Reference Banks shall fail to notify the Agent of the
rate of interest on the basis of which LIBOR is to be
determined as set forth in the definition of LIBOR or (b)
the Majority Banks shall notify the Agent that LIBOR for such
Interest Period will not adequately and fairly reflect the
cost to such Majority Banks of making, funding or maintaining
their Eurodollar Loans for such Interest Period (after giving
effect to any event giving rise to additional interest on such
Loans pursuant to Section 3.12), the Agent shall forthwith
so notify the Borrower and the Banks, whereupon the
obligations of the Banks to make or continue Committed
Loans as Eurodollar Loans or to convert Committed Loans into
Eurodollar Loans at the end of the then current Interest
Period shall be suspended until the Agent upon the instruction
of the Majority Banks revokes such notice. Upon receipt of
such notice, the Borrower may revoke its Notice of Borrowing or
Notice of Conversion/Continuation then submitted by it. If the
Borrower does not revoke such notice, the Banks shall make,
convert or continue the Committed Loans, as proposed by the
Borrower, in the amount specified in the applicable notice
submitted by the Borrower, but such Loans shall be made,
converted or continued as Reference Rate Loans instead of
Eurodollar Loans.
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23 Increased Costs. If any Bank shall determine that, due to either
(a) the introduction of any Requirement of Law or any change (other than
any change by way of imposition of or increase in reserve requirements
included in the Eurodollar Reserve Percentage) in or in the
interpretation thereof or (b) the compliance with any
guideline or request from any central bank or other
Governmental Authority (whether or not having the force of
law), there shall be any increase in the cost to such Bank
of agreeing to make or making, funding or maintaining any
Committed Loan, the Borrower shall be liable for, and shall
from time to time, upon demand by such Bank (with a copy
of such demand to the Agent), pay to the Agent for the
account of such Bank, additional amounts sufficient to
compensate such Bank for such increased costs.
24 Illegality.
(a) If any Bank shall determine that the introduction
of any Requirement of Law, or any change in or in the
interpretation thereof has made it unlawful, or any central
bank or other Governmental Authority shall assert that it is
unlawful, for such Bank or its Lending Office to make or continue to fund
Loans as Eurodollar Loans or to convert Loans into Eurodollar Loans,
then, on notice thereof by such Bank to the Borrower through
the Agent, the obligation of such Bank to make or to continue
to fund Loans as Eurodollar Loans or to convert any Loans into
Eurodollar Loans shall be suspended until such Bank shall have
notified the Agent and the Borrower that the circumstances
giving rise to such determination no longer exist.
(b) a Bank shall determine that it is unlawful to
maintain any Eurodollar Loan made by such Bank, the Borrower
shall prepay in full all Eurodollar Loans of such Bank then
outstanding, together with interest accrued thereon, either on
the last day of the then current Interest Period applicable to
each such Eurodollar Loan if such Bank may lawfully continue to
maintain such Eurodollar Loan to such day, or immediately,
together with any amounts required to be paid pursuant to
Section 3.11, if such Bank may not lawfully continue to
maintain such Eurodollar Loan to such day, unless the Borrower,
on or prior to the date on which it would otherwise be required
to prepay such Eurodollar Loan, converts all Eurodollar Loans
of such Bank then outstanding into Reference Rate Loans.
(c) Notwithstanding the foregoing, if the obligation
of any Bank to make or maintain Eurodollar Loans has been
suspended, the Borrower may elect by giving notice to such Bank
through the Agent that all Loans which would otherwise be made
or maintained by such Bank as Eurodollar Loans shall be instead
Reference Rate Loans.
25 Capital Adequacy. If any Bank shall have
determined that the compliance with any Requirement of Law
regarding capital adequacy, or any change therein or in the
interpretation or application thereof or compliance by such Bank
(or its Lending Office) or any corporation controlling such Bank
with any request or directive regarding capital adequacy (whether
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or not having the force of law) from any central bank or
other Governmental Authority, affects or would affect the
amount of capital required or expected to be maintained by
such Bank or any corporation controlling such Bank and such
Bank (taking into consideration such Bank's or such
corporation's policies with
respect to capital adequacy and such Bank's desired return
on capital) determines that the amount of such capital is
increased as a consequence of such Bank's Commitment, loans or
obligations under this Agreement with respect to any Committed
Borrowing then from time to time, upon demand of such Bank
(with a copy of such demand to the Agent), the Borrower shall
be liable for, and shall pay to the Agent for the account of
such Bank, as specified by such Bank, additional amounts
sufficient to compensate such Bank for such increase.
26 Funding Losses. The Borrower agrees to
reimburse each Bank and to hold each Bank harmless from any
loss, cost or expense which such Bank may sustain or
incur as a consequence of:
(a) any failure of the Borrower to borrow, continue or
convert a Eurodollar Loan after the Borrower has given (or is
deemed to have given) a Notice of Borrowing or a Notice of
Conversion/Continuation;
(b) any prepayment or payment of a Eurodollar Loan on
a day which is not the last day of the Interest Period with
respect thereto;
(c) any failure of the Borrower to make any prepayment
after the Borrower has given a notice in accordance with
Section 2.07; or
(d) the conversion of any Eurodollar Loan to a
Reference Rate Loan on a day that is not the last day of the
respective Interest Period pursuant to Section 2.11;
including any such loss or expense arising from the liquidation
or reemployment of funds obtained by it to maintain
its Eurodollar Loans hereunder or from fees payable to terminate
the deposits from which such funds were obtained.
27 Additional Interest on Eurodollar Loans.
The Borrower shall pay to each Bank, at the request of such Bank
(but not more frequently than once in each calendar quarter),
as long as such Bank shall be required under regulations of
the Federal Reserve Board to maintain reserves with respect to
liabilities or assets consisting of or including
Eurocurrency Liabilities, additional interest on the unpaid
principal amount of each Eurodollar Loan of such Bank from
the date such Eurodollar Loan is made until such principal
amount is paid in full, at a rate per annum equal at all
times to the remainder obtained by subtracting (a) LIBOR for
the Interest Period for such Eurodollar Loan from (b) the
rate obtained by dividing such LIBOR by a percentage equal
to 100% minus the Eurodollar Reserve Percentage of such Bank
for such Interest Period, payable on each date interest in
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respect of such Eurodollar Loan is payable.
Notwithstanding the provisions of the previous sentence,
the Borrower shall not be obligated to pay to any Bank any
additional interest in respect of Eurodollar Loans made by such
Bank for any period commencing more than three months prior to
the date on which such Bank notifies the Borrower by
delivering a certificate from a financial officer of such Bank,
that such Bank is required to maintain reserves with respect to
Eurocurrency Liabilities.
28 Certificates of Banks. Any Bank claiming reimbursement or
compensation pursuant to Section 3.05, 3.08, 3.10, 3.11 and/or 3.12 shall
deliver to the Borrower (with a copy to the Agent) a certificate setting
forth in reasonable detail the basis for computing the amount payable to
such Bank hereunder and such certificate shall be conclusive and
binding on the Borrower in the absence of manifest error. Unless
otherwise specifically provided herein, the Borrower shall pay to any Bank
claiming compensation or reimbursement from the Borrower pursuant to
Section 3.08, 3.10, 3.11 or 3.12, the amount requested by such
Bank no later than five Business Days after such demand.
29 Change of Lending Office; Replacement Bank.
(a) Each Bank agrees that upon the occurrence of any
event giving rise to the operation of Section 3.05(c) or (d) or
Section 3.08 or 3.09 with respect to such Bank, it will if so
requested by the Borrower, use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to
designate a different Lending Office for any Loans affected by such
event with the object of avoiding the consequence of the event
giving rise to the operation of such Section; provided, however, that such
designation would not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. Nothing in this Section 3.14 shall affect or
postpone any of the obligations of the Borrower or the right of any Bank
provided in Section 3.05(c) or (d) or Section 3.08 or 3.09.
(b) In the event the Borrower becomes obligated to pay
additional amounts to any Bank pursuant to Sections 3.05(c) or
(d) or 3.08, or if it becomes illegal for any Bank to continue
to fund or to make Eurodollar Loans pursuant to Section 3.09,
as a result of any condition described in any such Section,
then, unless such Bank has theretofore taken steps to remove or
cure, and has removed or cured, the conditions creating the
cause for such obligation to pay such additional amounts or
for such illegality, the Borrower may designate another Bank
which is reasonably acceptable to the Agent and the Majority
Banks (such Bank being herein called a "Replacement Bank") to
purchase the Committed Loans of such Bank and such Bank's
rights hereunder, without recourse to or warranty by, or
expense to, such Bank for a purchase price equal to the
outstanding principal amount of the Committed Loans payable to
such Bank plus any accrued but unpaid interest on such Loans
and accrued but unpaid fees in respect of such Bank's
Commitment and any other amounts payable to such Bank under
this Agreement, and to assume all the obligations of such Bank
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hereunder (except for such rights as survive repayment of the
Loans), and, upon such purchase, such Bank shall no longer be a
party hereto or have any rights hereunder (except those related
to any Bid Loans of such Bank which remain outstanding and
those that survive full payment hereunder) and shall be
relieved from all obligations to the Borrower hereunder, and
the Replacement Bank shall succeed to the rights and
obligations of such Bank hereunder.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and each
Bank that:
30 Corporate Existence; Compliance with Law. The
Borrower and each of its Subsidiaries:
(a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of
its incorporation;
(b) is duly qualified as a foreign corporation and in
good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of
its business requires such qualification except where the failure
to so qualify has no reasonable likelihood of having a
Material Adverse Effect;
(c) has all requisite corporate power and authority to
own, pledge, mortgage, hold under lease and operate its
properties, and to conduct its business as now or currently
proposed to be conducted;
(d) is in compliance with its certificate of
incorporation and by-laws; and
(e) is in compliance with all other Requirements of Law
except such non-compliance as has no reasonable likelihood of
having a Material Adverse Effect.
31 Corporate Authorization; No Contravention;
Governmental Authorization. The execution, delivery and
performance by the Borrower of the Loan Documents:
(a) are within the respective corporate powers of the
Borrower;
(b) have been duly authorized by all necessary
corporate action, including the consent of shareholders where
required;
(c) do not and will not:
(i) contravene the certificate of incorporation or by-
laws of the Borrower;
(ii) violate any other Requirement of Law (including
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the Securities Exchange Act of 1934, Regulations G, T, U and X of
the Federal Reserve Board or any order or decree of any court
or other Governmental Authority);
(iii) conflict with or result in the breach of, or
constitute a default under, any Contractual Obligation binding
on or affecting the Borrower or any of its properties, if such
breach or default has any reasonable likelihood of having a
Material Adverse Effect, or any order, injunction, writ or
decree of any Governmental Authority to which the Borrower or
any of its properties is subject; or
(iv) result in the creation or imposition of any Lien
upon any of the property of the Borrower; and
(d) do not require the consent, authorization by or
approval of or notice to or filing or registration with any
Governmental Authority or any other Person other than those
which have been duly obtained, made or given.
32 Enforceable Obligations. This Agreement and the
other Loan Documents have been duly executed and delivered by the
Borrower. This Agreement and each other Loan Document are legal,
valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms
except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws or
equitable principles relating to or limiting creditors' rights
generally.
33 Taxes. The Borrower and its Subsidiaries have
filed all Federal and other material tax returns and reports
required to be filed, and have paid all Federal and other
material taxes and assessments payable by them, to the extent the
same have become due and payable and before they have become
delinquent, except those which are currently being contested in
good faith by appropriate proceedings and for which adequate
reserves have been provided in accordance with GAAP, provided the
non-payment thereof has no reasonable likelihood of having a
Material Adverse Effect. The Borrower does not know of any
proposed material tax assessment against the Borrower or any of
its Subsidiaries and in the opinion of the Borrower, all
potential tax liabilities are adequately provided for on the
books of the Borrower and its Subsidiaries. The statute of
limitations for assessment or collection of Federal income tax
has expired for all federal income tax returns filed by the
Borrower for all tax years up to and including the tax year ended
in March, 1987 and filed by Holly Farms Corporation up to and
including the tax year ended on May 31, 1987.
34 Financial Matters.
(a) The consolidated balance sheet of the Borrower
and its Subsidiaries as of the last day of the fiscal year of
the Borrower ended on October 1, 1994 and as of the last day of the
fiscal quarter of the Borrower ended on April 1, 1995 and the
related consolidated statements of income, shareholders' equity
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and cash flows of the Borrower and its Subsidiaries for such
fiscal year and quarter, with, in the case of said fiscal year,
reports thereon by Ernst & Young:
(i) are complete, accurate and fairly present
the financial condition of the Borrower and its Subsidiaries
as of the respective dates thereof and for the respective
periods covered thereby;
(ii) were prepared in accordance with GAAP
consistently applied throughout the periods covered thereby,
except as set forth in the notes thereto; and
(iii) except as specifically disclosed in Schedule
4.05, show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its consolidated
Subsidiaries as of the dates thereof, including liabilities for
taxes, material commitments and long-term leases.
(b) Since October 1, 1994, there has been no Material
Adverse Effect and no development which has any reasonable
likelihood of having a Material Adverse Effect.
(c) The Borrower is, and the Borrower and its
Subsidiaries are, on a consolidated basis, Solvent.
35 Litigation. There are no actions, suits,
proceedings, claims or disputes pending, or to the best knowledge
of the Borrower, threatened, against the Borrower or any of
its Subsidiaries before any court or other Governmental
Authority or any arbitrator that have a reasonable
likelihood of having a Material Adverse Effect. All pending actions
or proceedings affecting the Borrower or any of its Subsidiaries
as of the date hereof and involving claims in excess of
$10,000,000 are described in Schedule 4.06.
36 Subsidiaries.
(a) A complete and correct list of all Subsidiaries of
the Borrower as of the Restatement Date, showing, as to each
Subsidiary, the correct name thereof, the jurisdiction of its
incorporation and the percentage of shares of each class
outstanding owned by the Borrower and each other Subsidiary of
the Borrower is set forth in Schedule 4.07(a).
(b) All of the outstanding shares of each of the
Subsidiaries listed on Schedule 4.07(a) have been validly
issued, are fully paid and non-assessable and are owned by the
Borrower or another Subsidiary of the Borrower, free and clear
of any Lien.
(c) The Borrower has no obligation to capitalize any of
its Subsidiaries.
(d) A complete and correct list of all joint ventures in
which the Borrower or any of its Subsidiaries, is a partner is
set forth in Schedule 4.07(d).
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37 Liens. There are no Liens of any nature
whatsoever on any properties of the Borrower or any of its
Subsidiaries other than Permitted Liens.
38 No Burdensome Restrictions; No Defaults.
(a) Neither the Borrower nor any of its Subsidiaries is a
party to or bound by any Contractual Obligation, or subject to
any charter or corporate restriction or any Requirement of Law,
which has any reasonable likelihood of having a Material Adverse
Effect.
(b) Neither the Borrower nor any of its Subsidiaries is
in default under or with respect to any Contractual Obligation in
any respect which, individually or together with all such
defaults, has a reasonable likelihood of having a Material
Adverse Effect.
(c) No Default or Event of Default exists or would result
from the incurring of any Obligations by the Borrower or any of
its Subsidiaries.
39 Investment Company Act. Neither the Borrower
nor any of its Subsidiaries is an "investment company" or
an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company", as such terms are defined in
the Investment Company Act of 1940, as amended. The making
of the Loans by the Banks and the application of the
proceeds and repayment thereof by the Borrower and the
consummation of the transactions contemplated by the Loan
Documents will not violate any provision of such Act or any
rule, regulation or order issued by the Securities and Exchange
Commission thereunder.
40 Use of Proceeds; Margin Regulations. No part of
the proceeds of any Loan will be used, and no Loan will
otherwise be, in violation of Regulation G, T, U or X of
the Federal
Reserve Board.
41 Assets.
(a) The Borrower and each of its Subsidiaries has good
record and marketable title to all real property necessary or
used in the ordinary conduct of its business, except for
Permitted Liens and such defects in title as have no reasonable
likelihood, individually or in the aggregate, of having a
Material Adverse Effect.
(b) The Borrower and each of its Subsidiaries owns or
licenses or otherwise has the right to use all material licenses,
permits, patents, trademarks, service marks, trade names,
copyrights, franchises, authorizations and other intellectual
property rights that are necessary for the operation of its
business, without infringement of or conflict with the rights of
any other Person with respect thereto, except for such
infringements or conflicts as have no reasonable likelihood of
having a Material Adverse Effect. No material slogan or other
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advertising device, product, process, method or other material
now employed, or now contemplated to be employed, by the
Borrower or any of its Subsidiaries infringes upon or conflicts
with any rights owned by any other Person except for such
infringements or conflicts as have no reasonable likelihood,
individually or in the aggregate, of having a Material Adverse
Effect.
42 Labor Matters. Except as disclosed in Schedule
4.13, there are no strikes or other labor disputes pending or, to
the knowledge of the Borrower, threatened against the Borrower or
any of its Subsidiaries which have any reasonable likelihood of
having a Material Adverse Effect. No significant unfair labor
practice complaint is pending or, to the knowledge of the
Borrower, threatened, against the Borrower or any of its
Subsidiaries before any Governmental Authority.
43 Environmental Matters. Except as disclosed in
Schedule 4.14:
(a) the on-going operations of the Borrower and each of
its Subsidiaries comply in all respects with all Environmental
Laws except such non-compliance as has no reasonable likelihood
of having a Material Adverse Effect;
(b) the Borrower and each of its Subsidiaries have
obtained all environmental, health and safety permits necessary
or required for its operations, all such permits are in good
standing, and the Borrower and each of its Subsidiaries is in
compliance with all material terms and conditions of such
permits;
(c) none of the Borrower, any of its Subsidiaries or any
of their present property or operations (or past property or
operations) is subject to any outstanding written order from or
agreement with any Governmental Authority nor subject to any
judicial or docketed administrative proceeding, respecting any
Environmental Claim or Hazardous Material which, in each case, has
any reasonable likelihood of having a Material Adverse Effect;
(d) there are no conditions or circumstances associated
with any property of the Borrower or any of its Subsidiaries
formerly owned and operated by the Borrower or any of its
Subsidiaries or any of their predecessors or with the former
operations, including off-site disposal practices, of the
Borrower or its Subsidiaries or their predecessors which may give
rise to Environmental Claims which in the aggregate have any
reasonable likelihood of having a Material Adverse Effect; and
(e) there are no conditions or circumstances which
may give rise to any Environmental Claim arising from the operations
of the Borrower or its Subsidiaries, including Environmental
Claims associated with any operations of the Borrower or its
Subsidiaries, which have any reasonable likelihood of having a
Material Adverse Effect. In addition, (i) neither the Borrower
nor any of its Subsidiaries has any underground storage tanks
(A) that are not properly permitted under applicable
Environmental Laws or (B) that to the best of the Borrower's
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knowledge, are leaking or dispose of Hazardous Materials off-site
and (ii) the Borrower and each of its Subsidiaries has notified all
of its employees of the existence, if any, of any health hazard
arising from the conditions of their employment and have met all
notification requirements under Title III of CERCLA and under OSHA
and all other Environmental Laws.
44 Completeness. None of the representations or
warranties of the Borrower contained herein or in any other Loan
Document or in any certificate or written statement furnished by
or on behalf of the Borrower pursuant to the provisions of
this Agreement or any other Loan Document contain any untrue
statement of a material fact or omit to state any material
fact necessary to make the statements contained herein or
therein, in light of the circumstances under which they are
made, not misleading. There is no fact known to the Borrower
which the Borrower has not disclosed to the Banks which may
have a Material Adverse Effect.
45 ERISA.
(a) Neither the Borrower nor any member of its
Controlled Group contributes to any Plan other than those set forth in
Schedule 4.16.
(b) Each Plan is in compliance in all material respects
with the applicable provisions of ERISA, the Code and any other
applicable Federal or state law and rules and regulations
promulgated thereunder. With respect to each Plan (other than a
Multiemployer Plan) all material reports required under ERISA or
any other applicable law or regulation to be filed with the
relevant Governmental Authority, the failure of which to file
could reasonably result in liability of the Borrower or any
member of its Controlled Group in excess of $500,000 have been
duly filed and all such reports are true and correct in all
material respects as of the date given.
(c) Except as set forth in Schedule 4.16, no Plan
has been terminated nor has any accumulated funding deficiency (as
defined in Section 412(a) of the Code) been incurred (without
regard to any waiver granted under Section 412 of the Code) nor
has any funding waiver from the IRS been received or requested.
(d) Neither the Borrower nor any member of its
Controlled Group has failed to make any contribution or pay any
amount due or owing as required by Section 412 of the Code or Section
302 of ERISA or the terms of any such Plan prior to the due date
(including permissible extensions thereof) under Section 412 of
the Code and Section 302 of ERISA.
(e) There has been no ERISA Event or any event requiring
disclosure under Section 4041(c)(3)(C), 4068(f), 4063(a) or
4043(b) of ERISA with respect to any Plan or trust of the
Borrower or any member of its Controlled Group.
(f) Except as set forth in Schedule 4.16, the value of
the assets of each Plan (other than a Multiemployer Plan)
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equalled or exceeded the present value of the benefit
liabilities, as defined in Title IV of ERISA, of each such Plan
as of the most recent valuation date using Plan actuarial
assumptions at such date.
(g) There are no pending claims, lawsuits or actions
(other than routine claims for benefits in the ordinary course)
asserted or instituted against, and neither the Borrower nor any
member of its Controlled Group has knowledge of any threatened
litigation or claims against, (i) the assets of any Plan or trust
or against any fiduciary of a Plan with respect to the operation
of such Plan which has any reasonable likelihood of having a
Material Adverse Effect or (ii) the assets of any employee
welfare benefit plan maintained by the Borrower or any member of
its Controlled Group within the meaning of Section 3(1) of ERISA
or against any fiduciary thereof with respect to the operation of
any such Plan which has any reasonable likelihood of having a
Material Adverse Effect.
(h) Neither the Borrower nor any member of its Controlled
Group has engaged in any prohibited transaction, within the
meaning of Section 406 of ERISA or Section 4975 of the Code, in
connection with any Plan.
(i) Neither the Borrower nor any member of its Controlled
Group (i) has incurred or reasonably expects to incur (A) any
liability under Title IV of ERISA (other than premiums due under
Section 4007 of ERISA to the PBGC) or (B) any withdrawal
liability (and no event has occurred which with the giving of
notice under Section 4219 of ERISA would result in such
liability) under Section 4201 of ERISA as a result of a
complete or partial withdrawal (within the meaning of Section
4203 or 4205 of ERISA) from a Multiemployer Plan or (C) any
liability under Section 4062 of ERISA to the PBGC or to a
trustee appointed under Section 4042 of ERISA, or (ii) has
withdrawn from any Multiemployer Plan.
(j) Neither the Borrower nor any member of its Controlled
Group nor any organization to which the Borrower or any member of
its Controlled Group is a successor or parent corporation within
the meaning of Section 4069(b) of ERISA has engaged in a
transaction within the meaning of Section 4069 of ERISA.
(k) Except as set forth in Schedule 4.16, neither the
Borrower nor any member of its Controlled Group maintains or has
established any welfare benefit plan within the meaning of
Section 3(1) of ERISA which provides for (i) continuing benefits
or coverage for any participant or any beneficiary of any
participant after such participant's termination of employment
except as may be required by the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA") and the
regulations thereunder, and at the expense of the participant or
the beneficiary of the participant, or (ii) retiree medical
liabilities. The Borrower and each member of its Controlled
Group which maintains a welfare benefit plan within the meaning
of Section 3(1) of ERISA has complied with any applicable
notice and continuation requirements of COBRA and the
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regulations thereunder, except where the failure to so comply
could not result in the loss of a tax deduction or imposition
of a tax or other penalty on the Borrower or any member of its
Controlled Group.
46 Insurance. The properties of the Borrower and
its Subsidiaries are insured with financially sound and reputable
insurance companies, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies
engaged in similar business and owning similar properties in
localities where the Borrower and its Subsidiaries operate.
CONDITIONS PRECEDENT
47 Conditions Precedent to Effectiveness. The
effectiveness of this Agreement and the obligation of each Bank
to make its first Committed Loan after the Restatement Date is
subject to the condition that the Agent shall have received the
following, each, unless specified below, dated the Restatement
Date, in form and substance satisfactory to the Agent, each Bank
and their respective counsel and (other than the promissory
notes, if any) in sufficient copies for each Bank:
(a) Credit Agreement and Notes. This Agreement
executed by the Borrower, each Co-Agent, the Agent and each of the Banks
and any promissory notes requested by the Banks pursuant to
Section 2.05;
(b) Board Resolutions; Approvals; Incumbency Certificates.
(i) Copies of the resolutions of the Executive Committee
of the Board of Directors of the Borrower approving and
authorizing the execution, delivery and performance by the
Borrower of this Agreement and the other Loan Documents to be
delivered hereunder, and authorizing the borrowing of the
Loans, certified as of the Restatement Date by the Secretary or
an Assistant Secretary of the Borrower; and
(ii) A certificate of the Secretary or Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to
execute and deliver this Agreement and all other Loan Documents
to be delivered hereunder;
(c) Articles of Incorporation; By-laws and Good
Standing. Each of the following documents:
(i) the articles or certificate of incorporation of the
Borrower as in effect on the Restatement Date, certified by the
Secretary of State of Delaware as of a recent date and by the
Secretary or Assistant Secretary of the Borrower as of the
Restatement Date and the by-laws of the Borrower as in effect
on the Restatement Date, certified by the Secretary or
Assistant Secretary of the Borrower as of the Restatement Date;
and
(ii) good standing certificates as of a recent date for
the Borrower from the Secretaries of State of Arkansas,
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Delaware, North Carolina, Texas and Virginia;
(d) Legal Opinion. A favorable opinion, dated the
Restatement Date and addressed to the Agent and the Banks of
Corporate Counsel of the Borrower and its Subsidiaries, in
substantially the form of Exhibit 5.01 and as to such other
matters as any Bank through the Agent may reasonably request
(and the Borrower hereby instructs such counsel to deliver
such opinion);
(e) Certificate. A certificate signed by a
Responsible Officer of the Borrower, dated as of the Restatement
Date,
stating that:
(i) the representations and warranties contained in
Article IV are true and correct on and as of such date, as though made on
and as of such date;
(ii) no Default or Event of Default exists or would
result from the initial Borrowing hereunder;
(iii) there has occurred since October 1, 1994, no
Material Adverse Effect; and
(f) Other Documents. Such other approvals, opinions or
documents as the Agent or any Bank may request.
48 Additional Conditions Precedent to the First
Committed Borrowing after the Restatement Date. The
obligation of each Bank to make its first Committed Loan after
the Restatement Date is subject to the further conditions
precedent that:
(a) Fees, Costs and Expenses. The Borrower shall have
paid all accrued and unpaid fees payable under the Original
Agreement to
the extent due and payable on or before the Restatement Date
and shall also have paid all costs and expenses referred to
in Section 10.04 (including legal fees and expenses and
the allocated cost of in-house counsel) to the extent such
costs and expenses are invoiced at least two Business Days
prior to the Restatement Date.
(b) Original Agreement. All loans outstanding
under the Original Agreement shall be simultaneously repaid,
prepaid or refinanced hereunder; provided, however, that any
Existing Bid
Loans outstanding under the Original Agreement on the
Restatement Date shall remain outstanding under this Agreement
as if the Existing Bid Loans were Bid Loans made hereunder.
(c) Original Banks. Each bank which is a
party to the Original Agreement but whose name does not
appear on the signature pages hereof shall have
consented to the amendment and restatement of the Original
Agreement and confirmed that it will not be a party to
this Agreement by executing and delivering a letter in the
form of Exhibit 5.02 and each Bank not a party to
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the Original Agreement by signing this Agreement shall
have become a Bank for all purposes of this Agreement.
49 Conditions Precedent to All Borrowings.
The obligation of each Bank to make any Loan (including its
first Committed Loan and any Bid Loan as to which there has
been an offer and acceptance of terms pursuant to Section
2.04) on or after the Restatement Date shall be subject
to the further conditions precedent that:
(a) Notice of Borrowing. In the case of a Committed
Borrowing, the Agent shall have received a Notice of Borrowing as
required by Section 2.02.
(b) Continuation of Representations and Warranties. The
representations and warranties contained in Article IV and in
each other Loan Document shall be true and correct on and as of
the date of borrowing with the same effect as if made on and as
of such date (except for representations and warranties
expressly relating to an earlier date, in which case they shall
be true and correct as of such earlier date).
(c) No Existing Default. No Default or Event of Default
shall exist and be continuing or shall result from the Loan being
made on such date.
(d) Other Assurances. The Agent shall have received such
other approvals, opinions or documents as any Bank through the
Agent may reasonably request related to the
transactions contemplated hereby.
Each Notice of Borrowing and Competitive Bid
Request submitted by the Borrower hereunder shall
constitute a representation and warranty by the Borrower hereunder, as of
the date of each such notice, application or request and as
of the date of each Borrowing relating thereto, that the
conditions in this Section 5.03 are satisfied.
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that as long as any
Bank shall have any Commitment hereunder or any Loan or
other Obligation shall remain unpaid or unsatisfied,
unless the Majority Banks waive compliance in writing:
50 Compliance with Laws, Etc. The Borrower shall comply, and cause each
of its Subsidiaries to comply, with all applicable Requirements of Law,
except such as may be contested in good faith by appropriate
proceedings and which has no reasonable likelihood of having a Material
Adverse Effect.
51 Use of Proceeds. The Borrower shall use the proceeds of any Loan
hereunder made on or after the Restatement Date to refinance Indebtedness
outstanding under the Original Agreement and for working capital and
other general corporate purposes (including capital expenditures and
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acquisitions and to support the issuance of commercial paper)
not in contravention of any Requirement of Law and consistent
with the representations and warranties contained herein;
provided, however, that the proceeds of any Loan hereunder
may not be used to finance the purchase or other
acquisition of Stock in any Person if such purchase or
acquisition is opposed by the board of directors of such
Person.
52 Payment of Obligations, Etc. The Borrower
shall pay and discharge, and cause each of its Subsidiaries to pay
and discharge, before the same shall become delinquent, all
lawful claims and all taxes, assessments and governmental
charges or levies unless the same are being contested in
good faith by appropriate proceedings and adequate reserves
therefor have been established on the books of the
Borrower or one of its Subsidiaries in accordance with GAAP, provided
all such nonpayments, individually or in the aggregate, have no
reasonable likelihood of having a Material Adverse Effect.
53 Insurance The Borrower shall maintain, and cause each of its
Subsidiaries to maintain, with financially sound and reputable
independent insurers, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against
by Persons engaged in the same or similar business, of such types and in
such amounts as are customarily carried under similar circumstances by
such other Persons.
54 Preservation of Corporate Existence, Etc.
The Borrower shall preserve and maintain, and cause each of
its Subsidiaries to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises,
except as permitted under Sections 7.05 and 7.07.
55 Access. The Borrower shall permit, and cause each of its
Subsidiaries to permit, representatives of the Agent or any Bank to
examine and make copies of and abstracts from the records and books of
account of, and visit the properties of, the Borrower and any of its
Subsidiaries, and to discuss the affairs, finances and accounts of the
Borrower and any of its Subsidiaries with any of their directors,
officers and independent public accountants and authorize
those accountants to disclose to such Person any and all
financial statements and other information of any kind,
including copies of any management letter or the substance
of any oral information that such accountants may have with
respect to the business, financial and other affairs of the
Borrower or any of its Subsidiaries, all at the expense of
the Borrower and at such times during normal business hours
and as often as may be reasonably desired, upon
reasonable advance notice to the Borrower; provided, however,
that when an Event of Default exists, the Agent or any Bank
may visit and inspect, at the expense of the Borrower, its
records and properties at any time during business hours and
without advance notice.
56 Keeping of Books. The Borrower shall
maintain, and cause each of its Subsidiaries to maintain, proper books
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of record and account, in which full and correct entries
shall be made of all financial transactions and matters
involving the assets and business of the Borrower and each of
its Subsidiaries in accordance with GAAP.
57 Maintenance of Properties. The Borrower shall maintain and preserve,
and cause each of its Subsidiaries to maintain and preserve, all of its
properties in good repair, working order and condition, and from time to
time make or cause to be made all necessary and proper repairs,
renewals, replacements and improvements so that the business carried on
in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in
this Section 6.08 shall prevent the Borrower or any of its
Subsidiaries from discontinuing the operation and the
maintenance of any of its properties if such discontinuance is, in the
opinion of the Borrower, desirable in the conduct of its business and
has no reasonable likelihood of having a Material Adverse Effect.
58 Financial Statements. The Borrower shall deliver to each Bank
with a copy to the Agent, in form and details satisfactory to the Banks
and the Agent:
(a) as soon as available, but not later than 45
days after the end of each of the first three quarters of each
fiscal year of the Borrower, a copy of the unaudited
consolidated balance sheet of the Borrower and its Subsidiaries
as of the end of such quarter and the related consolidated
statements of income, shareholders' equity and cash flows for
such quarter and for the period commencing at the end of the
previous fiscal year and ending on the last day of such quarter,
which statements shall be certified by the Chief Financial Officer of
the Borrower as being complete and correct and fairly presenting,
in accordance with GAAP, the financial position and results of
operation of the Borrower and its Subsidiaries;
(b) as soon as available, but not later than 90 days
after the end of each fiscal year of the Borrower, a copy of the
audited consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such year and the related
consolidated statements of income, shareholders' equity and cash
flows for the period commencing at the end of the previous fiscal
year and ending with the end of such fiscal year, which
statements shall be certified without qualification as to the
scope of the audit by a nationally recognized independent public
accounting firm and be accompanied by (i) a certificate of such
accounting firm stating that such accounting firm has obtained no
knowledge that a Default or an Event of Default has occurred and
is continuing, or if such accounting firm has obtained such
knowledge that a Default or an Event of Default has occurred and
is continuing, a statement as to the nature thereof and
(ii) copies of any letters to the management of the Borrower from
such accounting firm; and
(c) at the same time it furnishes each set of financial
statements pursuant to paragraph (a) or (b) above, a certificate
of the Chief Financial Officer of the Borrower (i) to the
effect that no Default or Event of Default has occurred and
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is continuing (or, if any Default or Event of Default has
occurred and is continuing, describing the same in reasonable
detail and the action which the Borrower proposes to take with
respect thereto) and (ii) a compliance certificate, in
substantially the form of Exhibit 6.09, setting forth in
reasonable detail the computations necessary to determine
whether the Borrower was in compliance with the financial
covenant set forth in Section 7.15, in each case reconciling
any differences between the numbers used in such calculations
and those used in the preparation of such financial statements.
59 Reporting Requirements. The Borrower shall
furnish to the Agent (and the Agent shall promptly furnish to the
Banks):
(a) promptly after the commencement thereof, notice of
all actions, suits and proceedings before any court or other
Governmental Authority affecting the Borrower or any of its
Subsidiaries which, individually or in the aggregate, has any
reasonable likelihood of having a Material Adverse Effect;
(b) promptly but not later than three Business Days after
the Borrower becomes aware of the existence of (i) any Default or
Event of Default, (ii) any breach or non-performance of, or any
default under, any Contractual Obligation to which the Borrower
or any of its Subsidiaries is a party which has any reasonable
likelihood of having a Material Adverse Effect, or (iii) any
Material Adverse Effect or any event or other development which has
a reasonable likelihood of having a Material Adverse Effect, notice
by telephone or facsimile specifying the nature of such Default,
Event of Default, breach, non-performance, default, Material
Adverse Effect, event or development, including the anticipated
effect thereof;
(c) promptly after the sending or filing thereof, copies
of all reports which the Borrower or any of its Subsidiaries
sends to its security holders generally, and copies of all
reports and registration statements which the Borrower or any
of its Subsidiaries files with the Securities and
Exchange Commission or any national securities exchange;
(d) promptly after the creation or acquisition thereof,
the name and jurisdiction of incorporation of each new Subsidiary
of the Borrower; and
(e) such other information respecting the business,
prospects, properties, operations or the condition, financial or
otherwise, of the Borrower or any of its Subsidiaries as any Bank
through the Agent may from time to time reasonably request.
60 Notices Regarding ERISA. Without limiting the
generality of the notice provisions contained in Section 6.10,
the Borrower shall furnish to the Agent:
(a) promptly and in any event (i) within 30 days after
the Borrower or any member of its Controlled Group knows or has
reason to know that any ERISA Event described in clause (a) of
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the definition of ERISA Event or any event described in Section
4063(a) of ERISA with respect to any Plan, and (ii) within ten
days after the Borrower or any member of its Controlled Group
knows or has reason to know that any other ERISA Event with
respect to any Plan has occurred or a request for a minimum
funding waiver under Section 412 of the Code with respect to
any Plan has been made, a statement of the Chief Financial
Officer of the Borrower describing such ERISA Event and the
action, if any, which the Borrower or such member of its
Controlled Group proposes to take with respect thereto
together with a copy of the notice of such ERISA Event or other
event, if required by the applicable regulations under ERISA,
given to the PBGC;
(b) promptly and in any event within five Business Days
after receipt thereof by the Borrower or any member of its
Controlled Group from the PBGC, copies of each notice received by
the Borrower or any such member of its Controlled Group of the
PBGC's intention to terminate any Plan or to have a trustee
appointed to administer any Plan;
(c) promptly and in any event within ten Business Days
after receipt thereof, a copy of any correspondence the Borrower
or any member of its Controlled Group receives from the Plan
Sponsor (as defined by Section 4001(a)(10) of ERISA) of any
Multiemployer Plan concerning potential withdrawal liability
of the Borrower or any member of its Controlled Group pursuant
to Section 4219 or 4202 of ERISA, and a statement from the
Chief Financial Officer of the Borrower or such member of
its Controlled Group setting forth details as to the events
giving rise to such potential withdrawal liability and the
action which the Borrower or such member of its Controlled
Group proposes to take with respect thereto;
(d) notification within 30 days of any material increase
in the benefits under any existing Plan which is not a
Multiemployer Plan, or the establishment of any new Plans, or the
commencement of contributions to any Plan to which the Borrower
or any member of its Controlled Group was not previously
contributing;
(e) notification within five Business Days after the
Borrower or any member of its Controlled Group knows or has
reason to know that the Borrower or any such member of its
Controlled Group has or intends to file a notice of intent to
terminate any Plan under a distress termination within the
meaning of Section 4041(c) of ERISA and a copy of such notice;
and
(f) promptly after receipt of written notice of
commencement thereof, notice of any action, suit and proceeding
before any Governmental Authority affecting the Borrower or any
member of its Controlled Group with respect to any Plan, except
those which, in the aggregate, if adversely determined, could not
have a Material Adverse Effect.
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61 Employee Plans.
(a) With respect to Plans other than a Multiemployer
Plan, for each Plan intended to be qualified under Section 401(a)
of the Code which is hereafter adopted or maintained by the
Borrower or by any member of its Controlled Group, the Borrower
shall or shall cause any such member of its Controlled Group to
(i) seek and receive determination letters from the IRS to the
effect that such Plan is qualified within the meaning of Section
401(a) of the Code; (ii) from and after the adoption of any such
Plan, cause such Plan to be qualified within the meaning of
Section 401(a) of the Code and to be administered in all material
respects in accordance with the requirements of ERISA and Section
401(a) of the Code; (iii) make all required contributions by the
due date (including permissible extensions) under Section 412 of
the Code and Section 302 of ERISA; and (iv) not take any action
which could reasonably be expected to cause such Plan not to be
qualified within the meaning of Section 401(a) of the Code or not
to be administered in all material respects in accordance with
the requirements of ERISA and Section 401(a) of the Code.
(b) With respect to each Multiemployer Plan, the Borrower
and each member of its Controlled Group will make any
contributions required by such Multiemployer Plan.
62 Environmental Compliance; Notice. The Borrower
shall, and cause each of its Subsidiaries to:
(a) use and operate all of its facilities and properties
in substantial compliance with all Environmental Laws, keep all
necessary permits, approvals, certificates, license and other
authorizations relating to environmental matters in effect and
remain in substantial compliance therewith, and handle all
Hazardous Materials in substantial compliance with all
applicable Environmental Laws;
(b) promptly upon receipt of all written claims,
complaints, notices or inquiries relating to the condition of
its facilities and properties or compliance with Environmental
Laws, evaluate such claims, complaints, notices and inquiries
and forward copies of (i) all such claims, complaints, notices
and inquiries which individually have any reasonable likelihood
of having a Material Adverse Effect and (ii) all such claims,
complaints, notices and inquiries, arising from a single
occurrence which together have any reasonable likelihood of
having a Material Adverse Effect, and endeavor to promptly
resolve all such actions and proceedings relating to compliance
with Environmental Laws; and
(c) provide such information and certifications which the
Agent may reasonably reque
(d) st from time to time to evidence compliance with this
Section 6.13.
II NEGATIVE COVENANTS
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The Borrower hereby covenants and agrees that as long as
any Bank shall have any Commitment hereunder or any Loan or
other Obligation shall remain unpaid or unsatisfied,
unless the Majority Banks shall waive compliance in writing:
63 Limitations on Liens. The Borrower shall not create, incur, assume
or suffer to exist, or permit any of its Subsidiaries to create, incur,
assume or suffer to exist, any Lien upon or with respect to any of its
properties, whether now owned or hereafter acquired, other
than the following ("Permitted Liens"):
(a) any Lien existing on the property of the Borrower or
any of its Subsidiaries on the Restatement Date and set forth in
Schedule 7.01 and any extension, renewal and replacement of any
such Lien; provided any such extension, renewal or replacement
Lien is limited to the property or assets covered by the Lien
extended, renewed or replaced and does not secure any
Indebtedness in addition to that secured immediately prior to
such extension, renewal and replacement;
(b) any Lien created pursuant to any Loan Document;
(c) Liens imposed by law, such as materialmen's,
mechanics', warehousemen's, carriers', lessors' or vendors'
Liens incurred by the Borrower or any of its Subsidiaries in
the ordinary course of business which secure its payment
obligations to any Person, provided (i) neither the Borrower nor
any of its Subsidiaries is in default with respect to any
payment obligation to such Person or is in good faith and by
appropriate proceedings diligently contesting such obligation
for which adequate reserves shall have been set aside on its
books and (ii) such Liens have no reasonable likelihood of
having, individually or in the aggregate, a Material Adverse
Effect;
(d) Liens for taxes, assessments or governmental charges
or levies either not yet due and payable or to the extent that
non-payment thereof shall be permitted by Section 6.03;
(e) Liens on the property of the Borrower or any of its
Subsidiaries incurred, or pledges and deposits made, in the
ordinary course of business in connection with worker's
compensation, unemployment insurance, old-age pensions and other
social security benefits, other than in respect of employee plans
subject to ERISA;
(f) Liens on the property of the Borrower or any of its
Subsidiaries securing (i) the performance of bids, tenders,
statutory obligations, leases and contracts (other than for the
repayment of borrowed money), (ii) obligations on surety and
appeal bonds not exceeding in the aggregate $5,000,000 and
(iii) other obligations of like nature incurred as an incident
to and in the ordinary course of business, provided all such
Liens in the aggregate have no reasonable likelihood (even if
enforced) of having a Material Adverse Effect;
(g) zoning restrictions, easements, licenses,
reservations, restrictions on the use of real property or minor
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irregularities incident thereto which do not impair the value of
any parcel of property material to the operation of the business of
the Borrower and its Subsidiaries taken as a whole or the value of
such property for the purpose of such business;
(h) (i) purchase money liens or purchase money
security interests (including in connection with capital
leases) upon or in any property acquired or held by the
Borrower or any of its Subsidiaries in the ordinary course of
business to secure the purchase price of such property or to
secure Indebtedness incurred solely for the purpose of
financing the acquisition of such property and Liens existing
on such property at the time of its acquisition (other than
any such Lien created in contemplation of such acquisition)
which Liens do not extend to any other property and do not
secure Indebtedness exceeding the purchase price of such
property;
(i) Liens (including in connection with capital
leases) securing Indebtedness of the Borrower or any of its
Subsidiaries incurred to finance all or some of the cost of
construction of property (or to refinance Indebtedness so incurred
upon completion of such construction) which Liens do not extend to
any other property except to the unimproved real property upon
which such construction will occur; provided the Indebtedness
secured by such Liens is not incurred more than 90 days after
the later of the completion of construction or the commencement
of full operation of such property; and
(ii) Liens on property in favor of any Governmental
Authority to secure partial, progress, advance or other
payments, or performance of any other obligations, pursuant to
any contract or statute or to secure any Indebtedness of the
Borrower or any of its Subsidiaries incurred for the purpose of
financing all or any part of the purchase price or the cost of
construction of property subject to Liens (including in
connection with capital leases) securing Indebtedness of the
pollution control or industrial or other revenue bond type and
which Liens do not extend to any other property;
provided, however, that the aggregate amount of Indebtedness
secured by all Liens referred to in clauses (i), (ii) and (iii)
of this paragraph (h) at any time outstanding, together
with the Indebtedness secured by Liens permitted pursuant to
paragraphs (i) and (l) below (and any extensions, renewals
and refinancings of such Indebtedness) shall not, subject to the
second proviso of paragraph (i) below, at any time exceed the
Permitted Lien Basket;
(i) Liens on assets of any corporation existing at
the time such corporation becomes a Subsidiary of the Borrower or
merges into or consolidates with the Borrower or any of its
Subsidiaries, if such Liens (A) do not extend to any other
property, (B) do not secure Indebtedness exceeding the fair
market value of such property at the time such corporation
becomes a Subsidiary of the Borrower or at the time of such
merger or consolidation, and (C) were not created in
contemplation of such corporation becoming a Subsidiary of the
Borrower or of such merger or consolidation; provided, however,
that the aggregate amount of Indebtedness secured by Liens
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referred to in this paragraph (i), together with the
Indebtedness secured by Liens permitted pursuant to paragraph
(h) above and paragraph (l) below (and any extensions,
renewals and refinancings of such Indebtedness) shall not at any time
exceed the Permitted Lien Basket; provided, further, however, that
notwithstanding the foregoing limitation, the Borrower may
incur, and permit its Subsidiaries to incur, Indebtedness
secured by Liens referred to in this paragraph (i) which, when
aggregated with the Indebtedness secured by Liens permitted
pursuant to paragraph (h) above and paragraph (l) below, exceed
the Permitted Lien Basket if, and only if, (x) such
Indebtedness remains outstanding for a period of less than six
months from the date on which such Indebtedness first exceeded
the Permitted Lien Basket or (y) such Liens are released within
six months;
(j) the filing of financing statements in respect of
accounts sold by the Borrower and its Subsidiaries pursuant to a
receivables purchase transaction by the purchaser or purchasers
from the Borrower and its Subsidiaries of such accounts;
(k) judgment Liens created by or resulting from any
litigation or legal proceeding if released or bonded within 60
days of the date of creation thereof (or such earlier date as may
be required by Section 8.01(h)), unless such litigation shall
have had a Material Adverse Effect; and
(l) Liens securing other Indebtedness of the Borrower or
any of its Subsidiaries not expressly permitted by paragraphs (a)
through (k); provided, however, that the aggregate amount of
Indebtedness secured by Liens permitted pursuant to paragraphs
(h) and (i) above and pursuant to this paragraph (l) (and any
extensions, renewals and refinancings of such Indebtedness)
shall not, subject to the second proviso of paragraph (i)
above, at any time exceed the Permitted Lien Basket.
64 Limitation on Indebtedness. The Borrower shall
not create, incur, assume or suffer to exist, or permit any of
its Subsidiaries to create, incur, assume or suffer to exist, any
Indebtedness except:
(a) the Loans and any other Indebtedness under this
Agreement or any other Loan Document;
(b) Indebtedness existing on the Restatement Date and set
forth in Schedule 7.02, and any extension, renewal, refunding and
refinancing thereof, provided that after giving effect to such
extension, renewal, refunding or refinancing, (A) the principal
amount thereof is not increased, (B) neither the tenor nor the
remaining average life thereof is reduced and (C) the interest
rate thereon is not increased; provided, however, that the
industrial revenue bonds identified by an asterisk in Schedule
7.02 may be refinanced at an interest rate higher than the rate
in effect immediately prior to such refinancing if such rate is
not in excess of any rate of interest then payable in respect
of the Loans (without taking into account any interest payable
pursuant to Section 2.10);
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(c) Indebtedness of the Borrower to any of its
wholly-owned Subsidiaries, of any Subsidiary of the Borrower to
the Borrower or of any Subsidiary of the Borrower to another
Subsidiary of the Borrower;
(d) surety bonds and appeal bonds required in the
ordinary course of business or in connection with the
enforcement of rights or claims of the Borrower or its
Subsidiaries or in connection with judgments that do not result
in a Default or an Event of Default;
(e) trade debt (including Indebtedness for the purchase
of farm products from contract growers and other similar
suppliers but excluding Indebtedness for Borrowed Money)
incurred by the Borrower or any of its Subsidiaries in the
ordinary course of business in a manner and to an extent
consistent with their past practices and necessary or
desirable for the prudent operation of its businesses;
(f) Indebtedness secured by Liens permitted pursuant to
Section 7.01 subject to the limitations contained therein;
(g) Indebtedness incurred in connection with the issuance
of commercial paper; and
(h) other present and future unsecured Indebtedness
provided at the time of, and immediately after giving effect to,
the incurrence of such Indebtedness, no condition or event
shall exist which constitutes an Event of Default.
65 Lease Obligations. The Borrower shall not
create, incur, assume or suffer to exist, or permit any of its
Subsidiaries to create, incur, assume or suffer to exist, any
obligation for the payment of rent for any property under lease
or agreement to lease having a term of one year or more, except
(a) leases of the Borrower and its Subsidiaries in
existence on the Restatement Date and any renewal or extension
thereof;
(b) operating leases in the ordinary course of business;
and
(c) subject to the limitations set forth in Section
7.01(h), capital leases entered into by the Borrower or any of
its Subsidiaries after the Restatement Date in connection
with sale-leaseback transactions; provided (i) immediately
prior to giving effect to such lease, the property subject to
such lease was sold by the Borrower or any such Subsidiary to
the lessor pursuant to a transaction permitted under Section
7.07 and (ii) no Event of Default exists or would occur as a
result of such sale and subsequent lease.
66 Restricted Payments. The Borrower shall not:
(a) declare or make, or permit any of its Subsidiaries to
declare or make, any dividend payment or other distribution of
assets, properties, cash, rights, obligations or securities on
account of its Stock other than (i) dividends paid by any
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wholly-owned Subsidiary of the Borrower to the Borrower or any
other wholly-owned Subsidiary of the Borrower; (ii)
distributions of shares of common stock of the Borrower to its
management as executive compensation and in connection with
management incentive plans; (iii) dividends or distributions
payable solely in additional common Stock of the Borrower; and
(iv) other dividends to the shareholders of the Borrower,
provided at the time of, and immediately after giving effect
to, the payment of such dividends pursuant to this paragraph
(a)(iv), no condition or event shall exist which constitutes an
Event of Default; or
(b) purchase, redeem, or otherwise acquire for value or
make any payment in respect of any of its Stock now or hereafter
outstanding (or permit any of its Subsidiaries to do so) except
(i) purchases in the open market to fund the Borrower's stock
option plans, employee stock purchase plans, 401(k) plans and
other similar plans consistent with the past practices of the
Borrower; (ii) the redemption or purchase by any wholly-owned
Subsidiary of the Borrower of any of its Stock owned by
another
wholly-owned Subsidiary of the Borrower and (iii) the
purchase, redemption and other acquisition of any of its
or such Subsidiary's Stock, provided at the time of, and
immediately after giving effect to, such purchase, redemption
or other acquisition pursuant to this paragraph (b)(iii), no
condition or event shall exist which constitutes an Event of
Default.
67 Mergers, Etc. The Borrower shall not merge or
consolidate with or into, or convey, transfer, lease or otherwise
dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to any Person, or, except as
permitted pursuant to Section 7.06 or Section 7.09, acquire all
or substantially all of the Stock of any Person, or acquire all
or substantially all of the assets of any Person (other than live
inventory) or enter into any joint venture or partnership with,
any Person, or permit any of its Subsidiaries to do so; provided,
however, that:
(a) the Borrower may merge with a wholly-owned
Subsidiary of the Borrower so long as (i) the Borrower is the
surviving corporation and (ii) at the time of, and immediately after
giving effect to, such merger, no condition or event shall exist which
constitutes an Event of Default;
(b) any wholly-owned direct or indirect Subsidiary of
the Borrower may merge with or into any other wholly-owned direct or
indirect Subsidiary of the Borrower or acquire Stock of any other
wholly-owned direct or indirect Subsidiary of the Borrower;
(c) the Borrower or any Subsidiary of the Borrower may
acquire all or substantially all of the Stock or all or
substantially all of the assets of any Person, provided at the
time of, and immediately after giving effect to such acquisition,
no condition or event shall exist which constitutes an Event of
Default; and
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(d) any Subsidiary of the Borrower may merge with
any other corporation permitted to be acquired pursuant to
paragraph (c) above, provided (i) at the time of, and immediately
after giving effect to, such merger, no condition or event shall
exist which constitutes an Event of Default and (ii) and after
such merger, the surviving corporation is a Subsidiary of the
Borrower.
68 Investments in Other Persons. The Borrower
shall not make, or permit any of its Subsidiaries to make,
any loan or advance to any Person (other than accounts
receivable created in the ordinary course of business)
or, except as permitted under Section 7.04 or 7.05,
purchase or otherwise acquire, or permit any of its
Subsidiaries to purchase or otherwise acquire, any Stock
or other equity interest or Indebtedness of any Person, or make, or
permit any of its Subsidiaries to make, any capital contribution to, or
otherwise invest in, any Person, except:
(a) Permitted Investments;
(b) loans or advances made by the Borrower or any
of its Subsidiaries to (i) employees of the Borrower or any of
such Subsidiaries in the ordinary course of business in a
manner consistent with past practices and (ii) joint ventures
and partnerships in which the Borrower is a partner, provided at
the time of, and immediately after giving effect to, such loans or
advances, no condition or event shall exist which constitutes
an Event of Default;
(c) loans or advances or other credit support, including
the procurement of letters of credit for its account, made by the
Borrower or any of its Subsidiaries (in addition to those
permitted under paragraph (b) above) to any Person; provided,
however, that the aggregate amount of all investments pursuant to
this paragraph (c) shall not at any time exceed 15% of the
consolidated Net Worth of the Borrower;
(d) investments in Stock or other joint ventures and
partnerships (including through mergers and consolidations),
provided at the time of, and immediately after giving effect to,
such investments, no condition or event shall exist which
constitutes an Event of Default;
(e) the organization or acquisition by the Borrower or
any of its wholly-owned Subsidiaries of one or more wholly-owned
Subsidiaries;
(f) the acquisition by the Borrower or any of its
wholly-owned Subsidiaries of Stock permitted to be issued
pursuant to Section 7.09; and
(g) intercompany Indebtedness permitted pursuant to
Section 7.02(d).
69 Assets. The Borrower shall not sell, assign,
transfer or otherwise dispose of any of its assets, or permit any
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of its Subsidiaries to sell, assign, transfer or otherwise
dispose of any of its assets, except:
(a) the sale or disposition of inventory and farm
products in the ordinary course of business;
(b) the sale or disposition in the ordinary course of
business of any assets which have become obsolete or surplus to
the business of the Borrower or any of its Subsidiaries, or has
no remaining useful life, in each case as reasonably determined
in good faith by the Borrower or such Subsidiary, as the case
may be;
(c) the periodic sales to third parties of live inventory
and related products and services under grow out contracts;
(d) Permitted Dispositions;
(e) the sale or disposition of Permitted Investments;
and
(f) the sale of accounts or other receivables for not
less than the fair value thereof by the Borrower and its
Subsidiaries, without recourse, in connection with a receivables
purchase transaction.
70 Change in Nature of Business. The Borrower
shall not:
(a) engage in any business other than the production,
marketing and distribution of food products and any related food
or agricultural products, processes or business; or
(b) permit any of its Subsidiaries to make any material
change in the nature of its business as carried on at the date
hereof except as permitted under Section 7.05 or enter into
any new business.
71 Capital Structure. The Borrower shall not:
(a) make, or, except as permitted by Section 7.05,
permit any of its Subsidiaries to make, any changes in its capital
structure (including in the terms of its outstanding Stock),
amend their certificate of incorporation or by-laws, or make
any changes in any of its business objectives, purposes or
operations if such change has a reasonable likelihood of having
a Material Adverse Effect; or
(b) permit any of its Subsidiaries to issue any
Stock (other than directors' qualifying shares) other than to the
Borrower or any wholly-owned Subsidiary of the Borrower, except
if (i) after giving effect to such issuance, such Subsidiary is
still a Subsidiary of the Borrower; (ii) such issuance has no
reasonable likelihood of having a Material Adverse Effect; and
(iii) at the time of, and immediately after giving effect to
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such issuance, there shall exist no condition or event
which constitutes an Event of Default.
72 Transactions with Affiliates, Etc. The Borrower shall
not:
(a) enter into or be a party to, or permit any
of its Subsidiaries to enter into or be a party to, any
transaction with any Affiliate of the Borrower or any such
Subsidiary except
(i) as otherwise expressly permitted herein or (ii) in the
ordinary course of business, to the extent consistent with
past practices, so long as any such transaction individually
and in the aggregate with other such transactions has no
reasonable likelihood of having a Material Adverse Effect;
(b) enter into, or permit any of its Subsidiaries
to enter into, any contract or other agreement or arrangement for
employment of an executive officer other than in the ordinary
course of business, or enter into, or permit any of its
Subsidiaries to enter into, any contract or other obligation for
the payment of management fees by the Borrower or any of its
Subsidiaries, except for the intercompany allocation of general
administrative costs and other expenses consistent with past
practices; or
(c) enter into, or permit any of its Subsidiaries
to enter into, any agreement that prohibits, limits or restricts
any repayment of loans or advances or other distributions to the
Borrower by any of its respective Subsidiaries, or that restricts
any such Subsidiary's ability to declare or make any dividend
payment or other distribution on account of any shares of any
class of its capital stock or on its ability to acquire or make a
payment in respect thereof.
73 Accounting Changes. The Borrower shall not make, or
permit any of its Subsidiaries to make, any significant change in
accounting treatment and reporting practices except as required
by GAAP, the IRS or the Securities and Exchange
Commission; provided, however, that if any such changes are so
required to be made within a certain period of time only, such
changes may, in the discretion of the Borrower, be made at
any time during such period.
74 Margin Regulations. The Borrower shall not use
the proceeds of any Loan in violation of Regulation G, T, U or
X of the Board of Governors of the Federal Reserve System.
75 Compliance with ERISA The Borrower shall not,
directly or indirectly, permit any member of the Controlled
Group of the Borrower to, directly or indirectly:
(a) terminate any Plan so as to result in any material
liability (in the opinion of the Majority Banks exercised
reasonably) to the Borrower or any member of its Controlled
Group;
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(b) permit to exist any ERISA Event, or any other event
or condition which presents the risk of a material liability (in
the opinion of the Majority Banks exercised reasonably) of the
Borrower or any member of its Controlled Group;
(c) make a complete or partial withdrawal (within the
meaning of Section 4201 of ERISA) from any Multiemployer Plan so
as to result in any material liability (in the opinion of the
Majority Banks exercised reasonably) to the Borrower or any
member of its Controlled Group;
(d) enter into any new Plan or modify any existing Plan
so as to increase its obligations thereunder except in the
ordinary course of business consistent with past practice which
has any reasonable likelihood of resulting in material liability
to the Borrower or any member of its Controlled Group; or
(e) permit the present value of all benefit liabilities,
as defined in Title IV of ERISA, under each Plan of the Borrower
or any member of its Controlled Group (using each Plan's
actuarial assumptions upon termination of such Plan) to
materially (in the opinion of the Majority Banks exercised
reasonably) exceed the fair market value of Plan assets allocable
to such benefits all determined as of the most recent
valuation date for each such Plan.
76 Speculative Transactions. The Borrower shall
not engage or permit any of its Subsidiaries to engage in any
transaction involving commodity options or futures contracts
other than in the ordinary course of business consistent with
past transactions.
77 Debt Ratio. The Borrower shall not permit at
any time the Debt Ratio to be greater than .65 to 1.
78 Events of Default. The term "Event of Default"
shall mean any of the events set forth in this Section 8.01.
(a) Non-Payment. The Borrower shall (i) fail to pay when
and as required to be paid herein, any amount of principal of any
Loan or any amount of interest on any Bid Loan; or (ii) fail to pay
within three Business Days after the same shall become due and
payable, any other interest or any fee or other amount payable
hereunder or under any other Loan Document or any other Obligation;
(b) Representations and Warranties. Any representation
or warranty made by the Borrower in this Agreement or in any
other Loan Document, or which is contained in any certificate,
document or financial or other statement delivered at any time
under or in connection with this Agreement or any other Loan
Document shall prove to have been incorrect or untrue in any
material respect when made or deemed made;
(c) Specific Defaults. The Borrower shall fail to
perform or observe any term, covenant or agreement contained in
Article VII or Section 6.02, 6.04 (but only to the extent such
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failure could have a Material Adverse Effect), 6.05, 6.06 or
6.10(b);
(d) Other Defaults. The Borrower shall fail to
perform or observe any other term or covenant contained in this
Agreement (including Section 6.04 to the extent not covered by
paragraph
(c) above) or any other Loan Document, and such Default shall
continue unremedied for a period of 15 days after the date
upon which written notice thereof shall have been given to
the Borrower by the Agent;
(e) Default under Other Agreements. Any
default shall occur under any Indebtedness of the Borrower
(other than under this Agreement) or any of its Subsidiaries (other
than Trasgo, S.A. de C.V., a Mexican Subsidiary of the Borrower)
having an
aggregate outstanding principal amount of $10,000,000 or more
or under one or more Interest Rate Contracts of the Borrower
or any of its Subsidiaries resulting in aggregate net
obligations of $10,000,000 or more and such default shall:
(i) consist of the failure to pay any Indebtedness
when due (whether at scheduled maturity, by required prepayment,
acceleration, demand or otherwise) after giving effect to any applicable
grace or notice period; or
(ii) result in, or continue unremedied for a period of
time sufficient to permit, the acceleration of such Indebtedness
or the early termination of such Interest Rate Contract;
(f) Bankruptcy or Insolvency. The Borrower or any of its
Subsidiaries shall:
(i) cease to be Solvent or generally fail to pay, or
admit in writing its inability to pay, its debts as they become
due;
(ii) commence an Insolvency Proceeding;
(iii) voluntarily cease to conduct its business in the
ordinary course; or
(iv) take any action to effectuate or authorize any of
the foregoing;
(g) Involuntary Proceedings.
(i) An involuntary Insolvency Proceeding shall be
commenced against the Borrower or any of its Subsidiaries or
any writ, judgment, warrant of attachment, execution or similar
process shall be issued or levied against a substantial part of
the Borrower's, or any of its Subsidiaries' properties, and any
such proceeding or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded within
60 days after commencement, filing or levy;
(ii) the Borrower or any of its Subsidiaries shall
admit in writing the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under non-
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United States law) against the Borrower or such Subsidiary is ordered in
any Insolvency Proceeding; or
(iii) the Borrower or any of its Subsidiaries shall
acquiesce in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent
therefor) or other similar Person for itself or a substantial
portion of its property or business;
(h) Monetary Judgments. One or more judgments, orders
or decrees for the payment of money exceeding in the aggregate
$10,000,000 (not fully covered by insurance) shall be rendered
against the Borrower or any of its Subsidiaries and either (i)
enforcement proceedings shall have been initiated by any
creditor upon such judgment or order or (ii) such judgment or
order shall continue unsatisfied, unvacated or unstayed for a
period of 20 days; Non-Monetary Judgments. Any
non-monetary judgment, order or decree shall be rendered against the
Borrower or any of its Subsidiaries which does or has a reasonable
likelihood of having a Material Adverse Effect and either (A)
enforcement proceedings shall have been initiated by any Person upon
such judgment or order or (B) there shall be any period of ten
consecutive days during which a stay of enforcement of such
judgment, order or decree, by reason of a pending appeal or
otherwise, shall not be in effect;
(i) ERISA. With respect to any Plan:
(i) the Borrower, any member of its Controlled Group
or any other party-in-interest or disqualified Person shall engage
in transactions which in the aggregate have a reasonable
likelihood of resulting in a direct or indirect liability to the
Borrower or any member of its Controlled Group in excess of
$10,000,000 under Section 409 or 502 of ERISA or Section 4975 of
the Code;
(ii) the Borrower or any member of its Controlled
Group shall incur any accumulated funding deficiency, as defined
in Section 412 of the Code, in the aggregate in excess of
$10,000,000, or request a funding waiver from the IRS for
contributions in the aggregate in excess of $10,000,000;
(iii) the Borrower or any member of its Controlled
Group shall incur any withdrawal liability in the aggregate in
excess of $10,000,000 as a result of a complete or partial
withdrawal from a Multiemployer Plan within the meaning of
Section 4203 or 4205 of ERISA;
(iv) the Borrower or any member of its Controlled
Group shall fail to make a required contribution by the due date
(including any permissible extensions) under Section 412 of the
Code or Section 302 of ERISA which would result in the imposition
of a Lien under Section 412 of the Code or Section 302 of ERISA;
(v) the Borrower, any member of its Controlled Group
or any Plan sponsor shall notify the PBGC of an intent to
terminate in a distressed termination, or the PBGC shall institute
proceedings to terminate, a Plan;
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(vi) a Reportable Event shall occur with respect to a
Plan, and within 15 days after the reporting of such Reportable
Event to the Majority Banks, the Majority Banks shall have
notified the Borrower in writing that (A) they have made a
determination that, on the basis of such Reportable Event, there
are reasonable grounds for the termination of such Plan by the
PBGC or for the appointment by the appropriate United States
District Court of a trustee to administer such Plan and (B) as a
result thereof a Default or an Event of Default shall occur
hereunder;
(vii a trustee shall be appointed by a court of competent
jurisdiction to administer any Plan or the assets thereof;
(viii) the benefits of any Plan shall be increased (other
than in the ordinary course of business consistent with past
practice), or the Borrower or any member of its Controlled
Group shall begin to maintain, or begin to contribute to, any
Plan, without the prior written consent of the Majority Banks;
or
(ix) any ERISA Event with respect to a Plan shall have
occurred, and 30 days thereafter (A) such ERISA Event shall not
have been corrected and (B) the then present value of such
Plan's benefit liabilities, as defined in Title IV of ERISA,
shall exceed the then current value of assets accumulated in
such Plan;
provided, however, that the events listed in clauses
(v)-(ix) of this paragraph (j) shall constitute Events of
Default only if, as of the date thereof or any subsequent date,
the maximum amount of liability the Borrower or any member of
its Controlled Group could incur in the aggregate under Section
4062, 4063, 4064, 4219 or 4243 of ERISA or any other provision of
law with respect to all such Plans, computed by the actuary of
the Plan taking into account any applicable rules and regulations
of the PBGC at such time, and based on the actuarial assumptions
used by the Plan, resulting from or otherwise associated with
such event exceeds $10,000,000; or
(j) Change in Control. Mr. Don Tyson, the Tyson
Limited Partnership and "members of the same family" of Mr. Don Tyson
as defined in Section 447(e) of the Code shall cease to have at
least 51% of the total combined voting power of the
outstanding Stock of the Borrower.
79 Remedies. If any Event of Default shall have
occurred and be continuing, the Agent shall at the request of, or
may with the consent of, the Majority Banks:
(a) declare the Commitment of each Bank to be
terminated, whereupon such Commitment shall forthwith be terminated;
and/or
(b) declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon and
all other Obligations payable hereunder or under any other Loan
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Document to be immediately due and payable, whereupon the
Loans, all such interest and all such Obligations shall become
and be forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby
expressly waived by the Borrower;
provided, however, that upon the occurrence of any event
specified in Section 8.01(f) or (g) with respect to the Borrower,
the Commitment of each Bank to make Loans shall automatically
terminate and the unpaid principal amount of all outstanding
Loans and all interest accrued thereon and all other Obligations
shall automatically become due and payable without further action
of the Agent or any Bank. If any Event of Default shall
occur and be continuing under Section 8.01(a) due to the
Borrower's failure to pay any amount of principal on or
interest of any Bid Loan, the Bank having made such Bid
Loan may send a written request to the Agent to obtain
approval of the Majority Banks to terminate the Commitments
and, if such approval is not obtained within ten Business Days
after the date such request is received, the affected Bank (or
assignee) may commence enforcement of such
default by any and all legal means.
80 Rights Not Exclusive. The rights provided for
in this Agreement and the other Loan Documents are cumulative
and are not exclusive of any other rights, powers,
privileges or remedies provided by law or in equity, or
under any other instrument, document or agreement now
existing or hereafter arising.
THE AGENT
81 Appointment. Each Bank hereby irrevocably
appoints, designates and authorizes the Agent to take such
action on its behalf under the provisions of this Agreement or
any other Loan Document and to exercise such powers and perform
such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in
this Agreement or in any other Loan Document, the Agent shall
not have any duties or responsibilities except those
expressly set forth herein or any fiduciary relationship
with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Loan Document or
otherwise exist against the Agent.
82 Delegation of Duties. The Agent may execute any
of its duties under this Agreement and any other Loan Document
by or through employees, agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
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83 Liability of Agent. Neither the Agent nor any
of its officers, directors, employees, agents, attorneys-in-
fact or Affiliates shall be (a) liable for any action taken or
omitted to be taken by any of them under or in connection
with this Agreement or any other Loan Document (except for
its own gross negligence or willful misconduct), or (b)
responsible in any manner to any of the Banks for
any recital, statement, representation or warranty made by the Borrower
or any officer thereof contained in this Agreement or any other Loan
Document or in any certificate, report, statement or other
document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any
other Loan Document or for the value of any collateral or
the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document or
for any failure of the Borrower to perform its obligations
hereunder or thereunder. The Agent shall not be under any
obligation to any Bank to ascertain or to inquire as to
the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other
Loan Document, or to inspect the properties, books or
records of the Borrower or any of its Subsidiaries.
84 Reliance by Agent.
(a) The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter,
facsimile or telex message, statement, order or other
document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper
Person or Persons and upon any advice
and statements of legal counsel (including counsel to the
Borrower), independent accountants and other experts selected
by the Agent. The Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other
Loan Document unless it shall first receive such advice or
concurrence of the Majority Banks as it deems appropriate or it
shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such
action. The Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or
any other Loan Document in accordance with a request from or
the consent of the Majority Banks and such request or consent
and any action taken or failure to act pursuant thereto shall
be binding upon all the Banks and all future holders of the
Loans or any portion thereof.
(b) For purposes of determining compliance with
the conditions specified in Sections 5.01 and 5.02, each Bank
shall be deemed to have consented to, approved or accepted or to
be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or
satisfactory to the Banks unless an officer of the Agent
responsible for the transactions contemplated by the Loan
Documents shall have received notice from such Bank prior to
the initial Borrowing after the Restatement Date specifying its
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objection thereto and either such objection shall not have been
withdrawn by notice to the Agent to that effect or such Bank
shall not have made available to the Agent such Bank's
Percentage Share of such Borrowing.
85 Notice of Default. The Agent shall not be
deemed to have knowledge or notice of the occurrence of any
Default or Event of Default, except with respect to payment
defaults, unless the Agent shall have received notice from a Bank
or the Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a
"notice of default". In the event that the Agent receives such a
notice, the Agent shall give prompt notice thereof to the Banks.
The Agent shall take such action with respect to such Default
or Event of Default as shall be requested by the Majority
Banks in accordance with Article VIII; provided however, that
unless and until the Agent shall have received any such
request from the Majority Banks, the Agent may (but shall
not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event
of Default as it shall deem advisable in the best interests
of the Banks.
86 Credit Decision. Each Bank expressly
acknowledges that neither the Agent nor any of its Affiliates
nor any officer, director, employee, agent, attorney-in-fact
of any of them has made any representation or warranty to it
and that no act by the Agent hereinafter taken, including any
review of the affairs of the Borrower and its Subsidiaries,
shall be deemed to constitute any representation or warranty
by the Agent to any Bank. Each Bank represents to the
Agent that it has, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as
it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, properties,
operations or condition, financial or otherwise, and
creditworthiness of the Borrower and made its own decision
to enter into this Agreement and extend credit to the
Borrower hereunder. Each Bank also represents that it will,
independently and without reliance upon the Agent or any other Bank,
and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this
Agreement, and to make such investigations as it deems
necessary to inform itself as to the business, prospects, properties,
operations or condition, financial or otherwise, and creditworthiness
of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Banks by
the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or
other information concerning the
business, prospects, properties, operations or
condition, financial or otherwise, and creditworthiness of the
Borrower which may come into the possession of the Agent or
any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
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87 Indemnification. The Banks agree to indemnify
the Agent (to the extent not reimbursed by or on behalf of
the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their respective
Percentage Shares, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including at any time
after the repayment of the Loans and all other Obligations)
be imposed on, incurred by or asserted against the Agent in any
way relating to or arising out of this Agreement or any other
Loan Document or any documents contemplated by or
referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted
by the Agent under or in connection with any of the
foregoing; provided however, that no Bank shall be liable
for the payment to the Agent of any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting
solely from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Bank
agrees to reimburse the Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including fees
and expenses of counsel and the allocated cost of in-
house counsel) incurred by the Agent in connection with
the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through
negotiation, legal proceedings or otherwise) of, or legal
advice in respect of its or the Banks' rights or
responsibilities under, this Agreement, any other Loan
Document or any document contemplated by or referred to
herein or therein to the extent that the Agent is not
reimbursed for such expenses by or on behalf of the Borrower.
88 Agent in Individual Capacity. Bank of America and its Affiliates may
make loans to, accept deposits from and generally engage in any kind of
business with the Borrower and its Subsidiaries as though Bank of America
were not the Agent hereunder. With respect to its Loans, Bank of
America shall have the same rights and powers under this
Agreement as any Bank and may exercise the same as though it
were not the Agent, and the terms "Bank" and "Banks" shall
include Bank of America in its individual capacity.
89 Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Banks and the Borrower and may be removed
at any time with or without cause by the Majority Banks. Upon any such
resignation or removal, the Majority Banks shall have the right to appoint
a successor Agent which shall be a commercial bank organized or chartered
under the laws of the United States of America or of any State
thereof and having combined capital and surplus of at least
$500,000,000. If no successor Agent shall have been so
appointed by the Majority Banks, and shall have accepted such
appointment, within 30 days after the notice of resignation
or the removal of the retiring Agent, then the retiring Agent
may, on behalf of the Banks, with the consent of the
Borrower, which shall not be unreasonably withheld, appoint
a successor Agent which shall be a commercial bank organized
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or chartered under the laws of the United States of America
or of any State thereof and having a combined capital and
surplus of at least $500,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of
the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under this Agreement and the other
Loan Documents. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this
Article IX and Sections 10.04 and 10.05 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was
Agent under this Agreement and the other Loan Documents.
MISCELLANEOUS
91 Notices, Etc. All notices, requests and other communications
provided to any party under this Agreement shall, unless otherwise
expressly specified herein, be in writing (including by telex or by
facsimile) and mailed by overnight delivery, telexed,
transmitted by facsimile or delivered: if to the Borrower, to
its address specified on the signature pages hereof; if to
any Bank, to its Domestic Lending Office; and if to the
Agent, to its address specified on the signature pages
hereof; or, as to the Borrower or the Agent, at such other
address as shall be designated by such party in a written
notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a
written notice to the Borrower and the Agent. All such
notices and communications shall be effective, if telexed, when
confirmed by telex answerback, if transmitted by facsimile, when
transmitted by facsimile and confirmed by telephone or
facsimile, or, if mailed by overnight delivery or delivered,
upon delivery, except that notices and communications to the
Agent pursuant to Article II or IX shall not be effective
until received by the Agent.
92 Amendments, Etc. No amendment or waiver of any
provision of this Agreement or of any other Loan Document, and
no consent to any departure by the Borrower herefrom or
therefrom, shall in any event be effective unless the same
shall be in writing, acknowledged by the Agent and signed or
consented to by the Majority Banks, and then such waiver or
consent shall be effective only in the specific instance
and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Banks, do any of the following:
(a) increase the Commitments of the Banks (other than
by assignment) or subject the Banks to any additional monetary
obligation;
(b) reduce the principal of, or interest (other than
any default interest payable pursuant to Section 2.10) on, the
Committed Loans or any fees payable hereunder;
(c) extend the Final Maturity Date or any date fixed
for any payment of interest on, the Committed Loans or any fees
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payable hereunder;
(d) change the percentage of the Commitments or
the percentage of the aggregate unpaid principal amount of the Loans
which shall be required for the Banks or any of them to take any
action hereunder;
(e) amend this Section 10.02; or
(f) amend or waive the provisions of Section 5.01
or 5.02.
93 No Waiver; Remedies. No failure on the part of
any Bank or the Agent to exercise, and no delay in
exercising, any right, remedy, power or privilege hereunder
or under any other Loan Document shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right,
remedy, power or privilege preclude any other or further
exercise thereof or the exercise of any other right, remedy,
power or privilege. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
94 Costs and Expenses. The Borrower agrees to pay on demand:
(a) all costs and expenses incurred by the Agent in
connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement or
any other Loan Document or any other document to be delivered
hereunder or thereunder or in connection with the transactions
contemplated hereby or thereby, or with respect to advising the
Agent as to its rights and responsibilities under the Loan
Documents, including the reasonable fees and out-of-pocket
expenses of counsel for the Agent (including the allocated cost
of in-house counsel);
(b) all costs and expenses incurred by the Agent or any
Bank in connection with the enforcement or preservation of any
rights under this Agreement or any other Loan Document or in
connection with any restructuring or "work-out" (whether through
negotiations, legal proceedings or otherwise), including the
reasonable fees and out-of-pocket expenses of counsel for the
Agent or such Bank (including the allocated cost of in-house
counsel); and
(c) all costs and expenses of the Agent incurred in
connection with due diligence, transportation, use of computers,
duplication, appraisals, surveys, audits, insurance, consultants
and search reports and all filing and recording fees and title
insurance premiums.
95 Indemnity.
(a) The Borrower agrees to indemnify, defend, reimburse
and hold harmless the Agent, each Bank and each of their
Affiliates, and each of their respective directors, officers,
employees, agents and advisors (each, an "Indemnified Party")
from and against all claims, actions, proceedings, suits,
damages, losses, liabilities, costs and expenses, including
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the reasonable fees and out-of-pocket expenses of counsel
(including the allocated cost of in-house counsel) which may
be incurred by or asserted against any Indemnified Party in
connection with, or arising out of, or relating to (i) any
transaction or proposed transaction (whether or not consummated)
financed or to be financed, in whole or in part, directly or
indirectly, with the proceeds of any Borrowing or otherwise
contemplated in this Agreement; (ii) the entering into and
performance of this Agreement and any other Loan Document by the
Agent or any Bank or any action or omission of the Borrower in
connection therewith; or (iii) any investigation, litigation, suit,
action or proceeding (regardless of whether an Indemnified
Party is a party thereto) which relates to any of the
foregoing or to any Environmental Claim, unless and to the extent
such claim, action, proceeding, suit, damage, loss, liability, cost or
expense was solely attributable to such Indemnified Party's
gross negligence or willful misconduct as determined by a final
judgment of a court of competent jurisdiction.
(b) The Agent and each Bank agree that in the
event that any investigation, litigation, suit, action or
proceeding is asserted or threatened in writing or instituted against
it or any other Indemnified Party, or any remedial, removal or
response action is requested of it or any other Indemnified
Party, for which the Agent or any Bank may desire indemnity or
defense hereunder, the Agent or such Bank shall promptly notify
the Borrower in writing.
(c) The Borrower at the request of the Agent or
any Bank shall have the obligation to defend against such
investigation, litigation, suit, action or proceeding or
requested remedial, removal or response action, and the Agent, in any
event, may participate in the defense thereof with legal counsel of
the Agent's choice. In the event that the Agent or any Bank
requests the Borrower to defend against such investigation,
litigation, suit, action or proceeding or requested remedial,
removal or response action, the Borrower shall promptly do so
and the Agent or the affected Bank shall have the right to have
legal counsel of its choice participate in such defense. No
action taken by legal counsel chosen by the Agent or any Bank
in defending against any such investigation, litigation, suit,
action or proceeding or requested remedial, removal or
response action shall vitiate or any way impair the Borrower's
obligations and duties hereunder to indemnify and hold harmless
any Indemnified Party.
96 Right of Set-off. Upon the occurrence and
during the continuation of any Event of Default, each Bank is
hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Bank to or for the credit or the account of the
Borrower against any and all of the Obligations, whether or not
such Bank shall have made any demand under this Agreement.
Each Bank agrees promptly to notify the Borrower after any
such set-off and application made by such Bank; provided,
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however, that the failure to give such notice shall not
affect the validity of such set-off and application. The
rights of each Bank under this Section 10.06 are in
addition to any other rights and remedies (including other
rights of set-off) which such Bank may have.
97 Binding Effect. The provisions of this Agreement shall be binding
upon and inure to the benefit of the Borrower, the Agent and each Bank and
their respective successors and assigns, except that the Borrower shall not
have the right to assign or transfer its rights or obligations hereunder
or any interest herein without the prior written consent of
all the Banks.
98 Assignments, Participations Etc.
(a) (i) Each Bank may, with the prior written
approval of the Borrower and the Agent, assign to one or more
Eligible Assignees, which approvals will not be unreasonably
withheld, and
(ii) each Bank may, without the consent of the Borrower or the
Agent, assign to any of its wholly-owned Subsidiaries which is
an Eligible Assignee or to any other Bank, other than a Bank
replaced pursuant to Section 3.14(b), (each such Person, an
"Assignee"), all or any fraction of its Committed Loans, if
any, owed to it and its Commitment in a minimum amount of
$10,000,000; provided, however, that the Borrower shall not, as
a result of an assignment by any Bank to any of its wholly-
owned Subsidiaries incur any increased liability for Taxes and
Other Taxes pursuant to Section 3.05.
(b) No assignment shall become effective, and
the Borrower and the Agent shall be entitled to continue to
deal solely and directly with each Bank in connection with
the interests so assigned by such Bank to an Assignee, until
(i) written notice of such assignment, together with an
agreement to be bound, payment instructions, addresses and
related information with respect to such Assignee, shall have
been given to the Borrower and the Agent by such Bank and
such Assignee, in substantially the form of Exhibit 10.08
(a "Notice of Assignment"), and such Bank and such Assignee
shall have executed in connection therewith an Assignment and
Assumption Agreement in substantially the form of Attachment A
to such Notice of Assignment, (ii) a processing fee in the
amount of $1,000 shall have been paid to the Agent by the
assignor Bank or the Assignee, and (iii) either (A) five
Business Days shall have elapsed after receipt by the Agent of
the items referred to in clauses (i) and (ii) or (B) if
earlier, the Agent shall have notified the assignor Bank and
the Assignee of its receipt of the items mentioned in clauses
(i) and (ii) and that it has acknowledged the assignment by
countersigning the Notice of Assignment.
(c) From and after the effective date of any
assignment, (i) the Assignee thereunder shall be deemed
automatically to have become a party hereto and, to the extent
that rights and obligations hereunder have been assigned to
such Assignee by the assignor Bank, shall have the rights and
obligations of a Bank hereunder and under each other Loan
Document, and (ii) the
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assignor Bank, to the extent that rights and obligations
hereunder have been assigned by it to the Assignee, shall be
released from its obligations hereunder and under the each
other Loan Document.
(d) Any Bank may at any time sell to one or more banks
or other Persons (each of such Persons being herein called a
"Participant") participating interests in any of the Loans, its
Commitment or any other interest of such Bank hereunder;
provided, however, that
(i) no participation contemplated in this Section
10.08(d) shall relieve such Bank from its Commitment or its
other obligations hereunder or under any other Loan Document;
(ii) such Bank shall remain solely responsible for the
performance of its Commitment and such other obligations;
(iii) the Borrower and the Agent shall continue to deal
solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement; and
(iv) no Participant, unless such Participant is itself
a Bank, shall be entitled to require such Bank to take or
refrain from taking any action hereunder or under any other
Loan Document, except that such Bank may agree with any
Participant that such Bank will not, without such Participant's consent,
approve any amendment to, or any consent or waiver with respect
to, this Agreement or any other Loan Document, to the extent
such amendment, consent or waiver would require unanimous
consent of the Banks as described in the proviso to Section
10.02.
The Borrower acknowledges and agrees that each Participant,
for purposes of Sections 3.05, 3.06, 3.08, 3.10, 3.11 or
10.06 shall be considered a Bank; provided, however, that,
for purposes of Sections 3.05, 3.08, 3.10 and 3.11, no
Participant shall be entitled to receive any payment or
compensation in excess of that to which such Participant's
selling Bank would be entitled with respect to the amount of
such Participant's participation interests if such Bank had
not sold such participation interests.
(e) Notwithstanding any other provision of this
Agreement, nothing contained in this Agreement shall prevent any
Bank from pledging or assigning its interest in the Loans to a
Federal Reserve Bank in the Federal Reserve System of the United
States of America in accordance with applicable law; provided,
however, that no such pledge or assignment shall release any Bank
from its obligations hereunder.
99 Confidentiality. Each Bank agrees to take
normal and reasonable precautions and exercise due care to
maintain the confidentiality of all non-public information
provided to it by the Borrower or by the Agent on the Borrower's
behalf in connection with this Agreement or any other Loan
Document and agrees and undertakes that neither it nor any of its
Affiliates shall use any such information for any purpose or in
any manner other than pursuant to the terms contemplated by this
Agreement. Any Bank may disclose such information (a) at the
request of any bank regulatory authority or in connection with an
170
<PAGE>
examination of such Bank by any such authority; (b) pursuant to
subpoena or other court process; (c) when required to do so in
accordance with the provisions of any applicable law; (d) at the
express direction of any agency of any State of the United States
of America or of any other jurisdiction in which such
Bank conducts its business; and (e) to such Bank's
affiliates, independent auditors, counsel and other
professional advisors. Notwithstanding the foregoing, the
Borrower authorizes each Bank to disclose to any Participant
or Assignee and any prospective Participant and Assignee such
financial and other information in such Bank's possession
concerning the Borrower or its Subsidiaries which has
been delivered to the Banks pursuant to this Agreement or any other
Loan Document or which has been delivered to the Banks by the Borrower
in connection with the Banks' credit evaluation of the Borrower prior to
entering into this Agreement; provided, however, that such
Participant or Assignee or prospective Participant or Assignee
agrees in writing to such Bank to keep such information confidential to
the same extent required of the Banks hereunder.
100 Survival. The obligations of the Borrower
under Sections 3.05, 3.08, 3.10, 3.11, 3.12, 10.04 and 10.05, and
the obligations of the Banks under Sections 3.05(h) and 9.07,
shall in each case survive repayment or purchase of the Loans
or any termination of this Agreement and the
Commitments. The representations and warranties made by the Borrower
in this Agreement and in each other Loan Document shall
survive the execution and delivery of this Agreement and
each other Loan Document.
101 Headings. The various headings of this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement or any provisions hereof or thereof.
102 Governing Law and Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK;
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF
NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
BORROWER HEREBY CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS. THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO.
103 Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of
which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
171
<PAGE>
104 Entire Agreement. THIS AGREEMENT EMBODIES THE ENTIRE
AGREEMENT AND UNDERSTANDING AMONG THE BORROWER, THE BANKS AND
THE AGENT, AND SUPERSEDES ALL PRIOR AGREEMENTS AND
UNDERSTANDINGS OF SUCH PERSONS RELATING TO THE SUBJECT MATTER
HEREOF EXCEPT FOR THE FEE LETTER AND ANY PRIOR ARRANGEMENTS
MADE WITH RESPECT TO THE PAYMENT BY THE BORROWER OF (OR ANY
INDEMNIFICATION FOR) ANY FEES, COSTS OR EXPENSES PAYABLE TO OR
INCURRED (OR TO BE INCURRED) BY OR ON BEHALF OF THE AGENT OR
THE BANKS.
105 Waiver of Jury Trial. THE AGENT, THE BANKS AND
THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER,
OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE
AGENT, THE BANKS OR THE BORROWER. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE AGENT AND THE BANKS TO ENTER INTO
THIS AGREEMENT.
172
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above written.
TYSON FOODS, INC.
By: /s/ Gerald Johnston
Title: Executive Vice President, Finance
173
<PAGE>
Address for notices:
2210 West Oaklawn Drive
Springdale, Arkansas 72764
Attention: Gerald Johnston
Facsimile No.: (501) 290-4028
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION,
as Agent
By: /s/ Frank H. Woo
Title: Assistant Vice President
Address for notices:
Agency Management Services
#5596 1455 Market Street
12th Floor
San Francisco, California
94103 Attention: Frank H. Woo
Telex No.: 372-6050
Answerback: BAGASFO
Facsimile No.: (415) 622-
4894
Address for payments: ABA
#121-000-3585F
Attention: Agency
Management Services
#5596
1850 Gateway Boulevard
Concord, California 94520
Credit to Account number:
1233-6-15172
Reference: Tyson
With copy to:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION
333 Clay Street, Suite 4550
Houston, Texas 77002-4103
Attention: Michael J.
Dillon Telex No.: 170-513
Answerback: BOAH
Facsimile No.: (713) 651-4841
THE CHASE MANHATTAN BANK
N.A., as Co-Agent
By: /s/ Thomas T. Daniels
Title: Vice President
CHEMICAL BANK, as Co-Agent
By: /s/ Beth F. Herman
Title: Vice President
174
<PAGE>
COOPERATIEVE CENTRALE
RAIFFEISENBOERENLEENBANK
B.A. (RABOBANK NEDERLAND),
NEW YORK BRANCH, as Co-Agent
By: /s/ Jess E. Jarratt
Title: Vice President
By: /s/ August Braaksma
Title: Vice President
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as
Co-Agent
By: /s/ Stephen B. King
Title: Vice President
NATIONAL WESTMINSTER BANK
Plc, as Co-Agent
By: /s/ Steven Parker
Title: Vice President
NATIONSBANK OF TEXAS, N.A.,
as Co-Agent
By: /s/ Steven A. Deily
Title: Senior Vice
President
SOCIETE GENERALE
SOUTHWEST AGENCY, as Co-Agent
By: /s/ Louis P. Laville
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ Michael J. Dillon Title: Vice
President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Ashby
Title:Senior Manager Loan Operations
175
<PAGE>
THE BANK OF TOKYO TRUST COMPANY
By: /s/ Sharon Fountain
Title: Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ W. Leroy Startz
Title: First Vice President
THE CHASE MANHATTAN BANK N.A.
By: /s/ Thomas T. Daniels
Title: Vice President
CHEMICAL BANK
By: /s/ Beth F. Herman
Title: Vice President
COOPERATIEVE CENTRALE
RAIFFEISENBOERENLEENBANK
B.A. (RABOBANK NEDERLAND),
NEW YORK BRANCH
By: /s/ Jess E. Jarratt
Title: Vice President
By: /s/ August Braaksma
Title: Vice President
CREDIT LYONNAIS
NEW YORK BRANCH
By: /s/ Robert Ivosevich
Title: Senior Vice
President
THE DAI-ICHI KANGYO BANK
LTD NEW YORK BRANCH
By: /s/ Andreas Panteli
Title: Vice President
FIRST AMERICAN NATIONAL BANK
176
<PAGE>
By: /s/ Elizabeth H. Vaughn
Title: Vice President
THE FIRST NATIONAL BANK
OF CHICAGO
By: /s/ Joan D. Winstein
Title: Vice President
THE FUJI BANK, LIMITED,
HOUSTON AGENCY
By: /s/ David Kelley
Title: Vice President & Senior Manager
ISTITUTO BANCARIO SAN PAOLO
DI TORINO SPA
By: /s/ Robert S. Wurster
Title: First Vice President
By: /s/ William J.
DeAngelo Title: First
Vice President
THE LONG-TERM CREDIT BANK
OF JAPAN, LTD.,
NEW YORK BRANCH
By: /s/ John J. Sullivan
Title: Joint General
Manager
THE MITSUBISHI BANK,
LTD. HOUSTON AGENCY
By: /s/ Shoji Honda
Title: General Manager
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Stephen B.
King Title: Vice President
177
<PAGE>
NATIONAL WESTMINSTE
BANK Plc NEW YORK
BRANCH
By: /s/ Steven Parker
Title: Vice President
NATIONAL WESTMINSTER
BANK Plc NASSAU BRANCH
By: /s/ Steven Parker
Title: Vice President
NATIONSBANK OF TEXAS,N.A.
By: /s/ Steven A. Deily
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Stephen V. Prostor
Title: Assistant Vice President
ROYAL BANK OF CANADA
By: /s/ J.D. Frost
Title: Senior Manager
THE SANWA BANK,
LIMITED, DALLAS
AGENCY
By:/s/ Robert S. Smith
Title: Assistant Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ Louis P.Laville
Title: Vice President
THE SUMITOMO BANK, LTD.,
HOUSTON AGENCY
By: /s/ Tatsuo Ueda
Title: General Manager
178
<PAGE>
THE TOKAI BANK, LIMITED,
NEW YORK BRANCH
By: /s/ M. Muto
Title: Deputy General Manager
TRUST COMPANY BANK
By: /s/ Jeffrey A. Howard
Title: Corporate Banking Officer
By: /s/ F. McClellan Deaver, III
Title: Vice President
179
<PAGE>
364-Day Facility [CONFORMED COPY]
FIRST AMENDED AND RESTATED
CREDIT AGREEMENT
among
TYSON FOODS, INC.,
as Borrower
THE BANKS NAMED HEREIN
THE CHASE MANHATTAN BANK N.A.
CHEMICAL BANK
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK,
B.A.
(RABOBANK NEDERLAND), NEW YORK BRANCH
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
NATIONAL WESTMINSTER BANK Plc
NATIONSBANK OF TEXAS, N.A.
SOCIETE GENERALE
as Co-Agents
and
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
as Agent
Dated as of May 26, 1995
180
<PAGE>
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Certain Defined Terms 1
1.02 Computation of Time Periods 15
1.03 Accounting Matters 15
1.04 Certain Terms 15
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
2.01 Amounts and Terms of Commitments 16
2.02 Procedure for Committed Borrowings 16
2.03 Bid Borrowings 17
2.04 Procedure for Bid Borrowings 17
2.05 Evidence of Indebtedness 21
2.06 Voluntary Termination or Reduction of the
ommitments 21
2.07 Optional Prepayments 22
2.08 Repayment 22
(a) The Committed Loans 22
(b) The Bid Loans 22
2.09 Interest 23
2.10 Default Interest 23
2.11 Continuation and Conversion Elections for
Committed Borrowings 23
ARTICLE III
FEES; PAYMENTS; TAXES; CHANGES IN CIRCUMSTANCES
3.01 Fees 26
3.02 Computation of Fees and Interest 26
3.03 Payments by the Borrower 26
3.04 Payments by the Banks to the Agent 28
3.05 Taxes 28
3.06 Sharing of Payments, Etc. 33
3.07 Inability to Determine Rates 34
3.08 Increased Costs 35
3.09 Illegality 35
3.10 Capital Adequacy 36
3.11 Funding Losses 36
3.12 Additional Interest on Eurodollar Loans 37
3.13 Certificates of Banks 37
3.14 Change of Lending Office; Replacement
Bank 37
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
181
<PAGE>
4.01 Corporate Existence; Compliance with
Law 39
4.02 Corporate Authorization; No Contravention;
Governmental Authorization 39
4.03 Enforceable Obligations 40
4.04 Taxes 40
4.05 Financial Matters 41
4.06 Litigation 41
4.07 Subsidiaries 41
4.08 Liens 42
4.09 No Burdensome Restrictions; No Defaults 42
4.10 Investment Company Act 42
4.11 Use of Proceeds; Margin Regulations 42
4.12 Assets 43
4.13 Labor Matters 43
4.14 Environmental Matters 43
4.15 Completeness 44
4.16 ERISA 45
4.17 Insurance 47
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions Precedent to Effectiveness 48
(a) Credit Agreement and Notes 48
(b) Board Resolutions;Approvals;
Incumbency Certificates 48
(c)Articles of Incorporation;
By-aws and Good Standing 48
(d) Legal Opinion 49
(e) Certificate 49
(f) Other Documents 49
5.02 Additonal Conditions Preceden to the First
Committed Borrowin after the Restatement Date 49
(a) Fees, Costs and Expenses 49
(b) Original Agreement 49
(c) Original Banks 50
5.03 Conditions Precedent to All Borrowings 50
(a) Notice of Borrowing 50
(b) Continuation of Representations and
Warranties 50
(c) No Existing Default 50
(d) Other Assurances 50
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01 Compliance with Laws, Etc 51
6.02 Use of Proceeds 51
6.03 Payment of Obligations, Etc. 51
6.04 Insurance 51
6.05 Preservation of Corporate Existence, Etc 51
6.06 Access 52
182
<PAGE>
6.07 Keeping of Books 52
6.08 Maintenance of Properties 52
6.09 Financial Statements 52
6.10 Reporting Requirements 53
6.11 Notices Regarding ERISA 54
6.12 Employee Plans 55
6.13 Environmental Compliance; Notice 56
ARTICLE VII
NEGATIVE COVENANTS
7.01 Limitations on Liens 57
7.02 Limitation on Indebtedness 60
7.03 Lease Obligations 61
7.04 Restricted Payments 61
7.05 Mergers, Etc. 62
7.06 Investments in Other Persons 63
7.07 Assets 64
7.08 Change in Nature of Business 64
7.09 Capital Structure 64
7.10 Transactions with Affiliates, Etc 65
7.11 Accounting Changes 65
7.12 Margin Regulations 66
7.13 Compliance with ERISA 66
7.14 Speculative Transactions 66
7.15 Debt Ratio 67
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Events of Default 68
(a) Non-Payment 68
(b) Representations and Warranties 68
(c) Specific Defaults 68
(d) Other Defaults 68
(e) Default under Other Agreements 68
(f) Bankruptcy or Insolvency 69
(g) Involuntary Proceedings 69
(h) Monetary Judgments 70
(i) Non-Monetary Judgments 70
(j) ERISA 70
(k) Change in Control 71
8.02 Remedies 72
8.03 Rights Not Exclusive 72
ARTICLE IX
THE AGENT
9.01 Appointment 73
9.02 Delegation of Duties 73
9.03 Liability of Agent 73
9.04 Reliance by Agent 74
183
<PAGE>
9.05 Notice of Default 74
9.06 Credit Decision 75
9.07 Indemnification 75
9.08 Agent in Individual Capacity 76
9.09 Successor Agent 76
ARTICLE X
MISCELLANEOUS
10.01 Notices, Etc. 78
10.02 Amendments, Etc. 78
10.03 No Waiver; Remedies 79
10.04 Costs and Expenses 79
10.05 Indemnity 79
10.06 Right of Set-off 81
10.07 Binding Effect 81
10.08 Assignments, Participations Etc 81
10.09 Confidentiality 83
10.10 Survival 84
10.11 Headings 84
10.12 Governing Law and Jurisdiction 84
10.13 Execution in Counterparts 84
10.14 Entire Agreement 84
10.15 Waiver of Jury Trial 84
Exhibits
Exhibit 2.02 Form of Notice of Borrowing
Exhibit 2.04(a) Form of Competitive Bid Request
Exhibit 2.04(b) Form of Competitive Bid
Exhibit 2.05(b) Form of Committed Loan Note
Exhibit 2.05(c) Form of Bid Note
Exhibit 2.11 Form of Notice of Conversion/
Continuation
Exhibit 5.01 Form of Opinion of Corporate
Counsel
Exhibit 5.02 Form of Confirmation
of Non-Participation
Exhibit 6.09 Form of Compliance Certificate
Exhibit 10.08 Form of Notice of Assignment
Attachment A to Form of Assignment and Assumption
Exhibit 10.08 Agreement
Schedules
Schedule 1.01(a) Commitments; Percentage Shares
Schedule 1.01(b) Lending Offices
Schedule 1.01(c) Existing Depositories
Schedule 4.05 Material Liabilities
Schedule 4.06 Pending Litigation
Schedule 4.07(a) Subsidiaries
Schedule 4.07(d) Joint Ventures/Partnerships
Schedule 4.13 Labor Matters
Schedule 4.14 Environmental Matters
Schedule 4.16 Employee Benefit Plans
Schedule 7.01/7.02 Existing Liens and Existing
Indebtedness
184
<PAGE>
EXHIBIT 11
TYSON FOODS, INC.
COMPUTATION OF EARNINGS PER SHARE
(In thousands except per share data)
Quarter Ended
__________________________
July 1, July 2,
1995 1994
__________________________
Primary:
Average common shares outstanding
during the period 144,720 147,683
Net effect of dilutive stock
options based on the treasury
stock method using average
market price 342 832
_______ _______
Total common and common equivalent
shares outstanding 145,062 148,515
Less antidilutive shares 832
_______ _______
Adjusted shares 145,062 147,683
======= =======
Net income (loss) $57,710 $(148,401)
======= =========
Earnings (loss) per share $0.40 $(1.00)
===== ======
Fully Diluted:
Average common shares outstanding
during the period 144,720 147,683
Net effect of dilutive stock
options based on the treasury
stock method using the quarter-
end market price, if higher
than average market price 342 1,004
_______ _______
Total common and common equivalent
shares outstanding 145,062 148,687
Less antidilutive shares 1,004
_______ _______
Adjusted shares 145,062 147,683
======= =======
Net income (loss) $57,710 $(148,401)
======= =========
Earnings (loss) per share $0.40 $(1.00)
===== ======
185
<PAGE>
EXHIBIT 11
TYSON FOODS, INC.
COMPUTATION OF EARNINGS PER SHARE
(In thousands except per share data)
Nine Months Ended
__________________________
July 1, July 2,
1995 1994
__________________________
Primary:
Average common shares outstanding
during the period 144,373 147,594
Net effect of dilutive stock
options based on the treasury
stock method using average
market price 343 798
_______ _______
Total common and common equivalent
shares outstanding 144,716 148,392
Less antidilutive shares 798
_______ _______
Adjusted shares 144,716 147,594
======= =======
Net income (loss) $160,388 $(60,901)
======== ========
Earnings (loss) per share $1.11 $(0.41)
===== ======
Fully Diluted:
Average common shares outstanding
during the period 144,373 147,594
Net effect of dilutive stock
options based on the treasury
stock method using the quarter-
end market price, if higher
than average market price 343 964
_______ _______
Total common and common equivalent
shares outstanding 144,716 148,558
Less antidilutive shares 964
_______ _______
Adjusted shares 144,716 147,594
======= =======
Net income (loss) $160,388 $(60,901)
======== ========
Earnings (loss) per share $1.11 $(0.41)
===== ======
186
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
QUARTERLY FINANCIAL STATEMENTS FOR THE PERIOD ENDED JULY 1, 1995 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0000100493
<NAME> TYSON FOODS, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> SEP-30-1995
<PERIOD-END> JUL-1-1995
<CASH> 32,843
<SECURITIES> 0
<RECEIVABLES> 436,876
<ALLOWANCES> 3,508
<INVENTORY> 850,181
<CURRENT-ASSETS> 1,346,780
<PP&E> 2,727,270
<DEPRECIATION> 998,110
<TOTAL-ASSETS> 3,895,116
<CURRENT-LIABILITIES> 530,484
<BONDS> 1,498,747
<COMMON> 14,815
0
0
<OTHER-SE> 1,397,095
<TOTAL-LIABILITY-AND-EQUITY> 3,895,116
<SALES> 4,031,712
<TOTAL-REVENUES> 4,031,712
<CGS> 3,224,971
<TOTAL-COSTS> 3,224,971
<OTHER-EXPENSES> 472,988
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 84,022
<INCOME-PRETAX> 249,731
<INCOME-TAX> 95,351
<INCOME-CONTINUING> 154,380
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 160,388
<EPS-PRIMARY> 1.11
<EPS-DILUTED> 1.11
</TABLE>
